Governor’s abrupt Dismissal of Chairman, Two Members of Texas Forensic Science Commission on Eve of Hearing Smacks of Political Cover-up
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair
It is one thing for a governor to have possibly presided over the execution of an innocent man but quite another for that governor to effectively shut down an official investigation into whether the forensic evidence used convict the man was reliable.
That’s precisely what Texas Gov. Rick Perry did on September 30, 2009 when he abruptly replaced three members of the Texas Forensic Science Commission two days before the commission was scheduled to hear testimony from a renowned forensic expert who has cast serious doubts on the forensic evidence that sent Cameron Todd Willingham to his death on February 17, 2004 under Perry’s watch.
The governor has denied any ulterior personal or political motives for the firing of commission chairman Sam Bassett, an Austin attorney, and two other commission members. Bassett was instrumental earlier this year in securing the services the highly touted Maryland fire scientist and expert named Craig Beyler. The commission charged Beyler with the very specific task of determining whether the forensic evidence used to convict Willingham was reliable and satisfied nationally recognized scientific standards for the use of such evidence in arson cases. Beyler was not charged with the task of making a determination of whether or not Willingham was actually innocent.
“He [Beyler] appears to be one of the pre-eminent people in the fire and arson investigation field,” Bassett was quoted as saying in a January 27, 2009 Chicago Tribune article.
Barry Scheck, co-director of the New York-based Cardozo Innocence Project, agreed. He was also quoted in the Tribune article as saying: “It’s essential that this matter is resolved for the sake of those who have been wrongfully convicted by unreliable arson evidence, as well as those under investigation in new arson cases. It’s critical that sound science is used in these cases.”
The Cameron Todd Willingham has posed a continuing political problem for Gov. Perry for the past six years. While the problem actually began on the day Willingham was executed, it morphed into a really serious problem with national implications on December 9, 2004 when Chicago Tribune investigative reporter Steven Mills published an article that detailed the results of the newspaper’s own investigation into the Willingham case which cast serious doubt on Willingham’s guilt.
Steven Mills reported that in 1991 Willingham, his wife, and three children—2-year-old Amber and one-year-old twins, Karmon and Kameron—lived in a trailer in Corsicana, Texas. Lack of a stove forced the couple to prepare their meals on a twin-burner hot plate or in a defective microwave. In December of that year Willingham had been laid off from his job, forcing his wife, Stacy, take a job at a local bar called “’Some Other Place.” The bills mounted. Behind two months in trailer rent, Mills reported the couple had stopped paying some bills “to save money for Christmas.”
On December 23 Stacy left the trailer at mid-morning to go to a local Salvation Army store to buy Christmas gifts. Willingham was left alone with the three children at the trailer. Mills reported Willingham awoke just as Stacy was leaving at which time he heard the twins crying. The father would later tell investigators that he got up, gave the twins their bottles, placed them on the floor, and put a childproof gate at the doorway of the bedroom. Steven Mills described what happened next:
“Willingham told investigators that he was awakened about an hour after his wife left by Amber’s cries of ‘Daddy, Daddy.’
“The house, he said, was so full of smoke that he could not see the doorway leading out of the bedroom. Crouching low, he went into the hall. He said he saw that there was not much smoke in the kitchen but ‘couldn’t see anything but black’ toward the front of the house.
“With the electrical circuits popping, Willingham said he made his way to the girls’ bedroom. He saw an orange glow on the ceiling, but little else because the smoke was so heavy. He said he stood up to step over the childproof gate, and his hair caught fire.
“He crouched back down, he told investigators, and felt along the floor for the twins but could not find them. He said he called out for Amber and felt on top of her bed, but she was not there.
“When debris began to fall from the ceiling, burning his shoulder, he said he fled through and out the front door.”
That picture—a father fleeing the trailer leaving his children behind—stuck with investigators and at least one neighbor who witnessed the fire. Mary Barbee, who arrived at the scene almost immediately after the fire started, stated she didn’t feel Willingham had done enough to save the children. But her statement was contradicted by another witness named Burvin Smith, who also arrived shortly after the fire started and who said he had to restrain Willingham from going onto the porch of the burning trailer.
Contradictions marred the Willingham case from the very beginning. While both Barbee and Smith told investigators Willingham had been “real hysterical” about the fire, Corsicana Fire Department chaplain George Monahan believed Willingham’s emotional display was insincere. “It seemed to me that Cameron was too distraught” and that led him to believe Willingham had deliberately set the fire, the chaplain would later tell the jury that convicted Willingham.
Willingham’s own actions on the day of the fire and the day after the fire lent credence to Monahan’s assessment. On the day of the fire, just as a huge ball of flames burst out of the front of the trailer, Willingham rushed into the garage and pushed his car clear of the fire; and the day after the fire Mills reported the father complained not about the loss of his three children as he pored through the fire’s debris with music blaring from a friend’s nearby truck but about a lost dart board he could not find.
That behavior came back to haunt Willingham. On January 8, 1992 Navarro County District Attorney Patrick Batchelor told the local media that Willingham had killed his three children because they got in the way of his beer drinking and dart throwing as the district attorney announced the father’s indictment for capital murder.
A climate to convict Willingham pervaded Navarro County. Even one of his own court appointed attorneys, David Martin, believed he was guilty. “That crime scene was so replete with evidence of arson,” he was quoted by the Tribune as saying. “There was no other cause for the house catching on fire.”
Current Navarro County Judge John Jackson, the assistant district attorney who prosecuted Willingham, also firmly believes he was guilty, telling the Tribune he had “no reservations” about either the verdict or Willingham’s execution.
These expressions of Willingham’s guilt did not dissuade Steven Mills’ 2004 investigation into the case. His excellent investigative journalism uncovered a February 10, 1992 “groundbreaking document in fire investigation” that was published by the National Fire Protection Association just two months after “the fatal fire at the Willingham house.” Prepared by 30 fire experts, the document was published as a “guideline for fire investigators.”
Mills’ investigation disclosed this same report had played a role in the exoneration of another Texas death row inmate, Ernest Willis, in early 2004. His Tribune piece reported:
“In Pecos County, in West Texas, District Atty. Ori White has to decide whether to retry Willis, who had been convicted of setting a fire that killed two women and had spent 17 years on Death Row. Willis had gotten a new trial on unrelated legal issues in the case.
“Before making his decision, White asked [Gerald] Hurst to review the evidence. The prosecutor also asked [Kenneth] Ryland to conduct an independent review.
“Hurst concluded there was no evidence of arson, that the fire mostly likely was accidental. Ryland concurred. White then dropped the case against Willis and Willis walked free. It was the 12th time Hurst’s work had led to dismissal of charges or an acquittal.
“Said White: ‘I don’t turn killers lose. If Willis was guilty, I’d be retrying him right now. And I’d use Hurst as my witness. He’s a brilliant scientist. If he says it was an arson fire, then it was. If he says it wasn’t, then it wasn’t.’”
A Cambridge-University-educated chemist, Gerald Hurst has investigated scores of fires during his career. He also had a history with the Willingham case. At the request of Willingham’s family, he had examined the evidence prosecutors used in the case and prepared a report concluding Willingham had not intentionally set the fire that killed his children.
Thus it was natural that the Tribune would ask Hurst and Kenneth Ryland, who is the Chief of the Effie Fire Department and a former fire instructor at the Louisiana State University in Baton Rouge, to review documents, trial testimony and a videotape of the fire’s aftermath in the Willingham case. Steven Mills also consulted with two other private fire investigators, John Lentini and John DeHaan (both of whom were involved with the preparation of the 1992 NFPA’s fire investigation guidelines) during his investigation of the Willingham case.
“There’s nothing to suggest to any reasonable arson investigator that this [Willingham’s case] was an arson,” Hurst told Mills. “It was just a fire.”
Ryland agreed. He said he tried to re-create the conditions in his work shop that Navarro County fire officials had described in the Willingham case but could not. The inability to do so “made me sick to think this guy was executed based on this investigation … They executed this guy and they’ve just got no idea—at least not scientifically—if he set the fire, or if the fire was even intentionally set,” he told Mills.
One of the original fire investigators in the Willingham case, Deputy Fire Marshal Edward Cheever, agreed with the conclusions drawn by the fire experts consulted by the Tribune.
“At the time of the [Willingham] fire, we were still testifying to things that aren’t accurate today,” Cheever told Mills. “They were true then, but they aren’t now.” Cheever added that “Hurst was pretty much right on … We now know not to make those same assumptions.”
Less than a year after the Tribune’s investigation into the Willingham case the Texas Legislature established, without funding, the Texas Forensic Science Commission to investigate allegations of forensic errors and misconduct. These developments prompted Barry Scheck’s Innocence Project to hire four experts of its own in 2006 to review the Willingham case. The group’s experts reached the same conclusion as those drawn by the Tribune experts.
In May 2006 the Innocence Project filed a formal request that the Texas Forensic Science Commission investigate the Willingham case based on the conclusions drawn by its fire experts. Without funding, there was little the commission could do with the request. In 2007 the Texas Legislature saw fit to fund the commission so it could fulfill its legislative-designated responsibilities.
In August 2008 the Commission agreed to conduct an investigation into the Willingham case as requested by the Innocence Project. This decision would ultimately lead to the Commission’s January 2009 decision to hire Beyler to examine all the evidence in the Willingham case to determine its scientific reliability.
“If [Beyler’s report] is critical of the arson testimony [in the Willingham case],” Bassett said at the time, “then theoretically it’s possible that could be the basis for a broader conclusion about the original conviction.”
This past August, 2009, Beyler issued a 51-page report that stopped short of saying Cameron Todd Willingham had been wrongfully convicted but blasted the scientific reliability of the arson techniques relied upon by state fire officials which led to his conviction. Beyler charged those techniques were so flawed that they did not even comply with the National Fire Prevention Association’s standards in place at the time of the Willingham investigation.
Beyler was particularly critical of Corsicana Fire Chief Douglas Fogg, saying: “He relied on his personal belief rather than using the scientific method or the process of elimination. In the end, the only [basis] for the determination of arson … is the burn patterns on the floor of the children’s bedroom, the hallway and the porch interpreted as accelerant spill. None of these determinations have any basis in modern fire science.”
Upon receipt of Beyler’s report, Texas Forensic Science Commission Chairman Bassett announced the commission would interview the Maryland fire expert at an October 2, 2009 hearing and would also entertain any response from state arson investigators who conducted the Willingham investigation.
The political backlash from Gov. Perry was immediate. A September 18, 2009 report in the Dallas Morning News conveyed the governor’s reaction to the three independent studies conducted by seven of the nation’s top arson experts that cast irrefutable doubts about the fire forensic evidence used to convict Willingham. The governor dismissed the reports with air quotes calling the experts “latter-day supposed experts” and added that there was “clear and convincing, overwhelming evidence” in the court records he reviewed about the Willingham case which convinced him that “he [Willingham] was in fact the murderer of his [three] children.”
As the October 2nd hearing date approached, the greater the concerns were in Perry’s office. Although he refused to speculate about the governor’s motives for the abrupt commission changes, Bassett told Houston Chronicle columnist Lisa Falkenberg that Perry staffers had discussions with him about the upcoming hearing and “were concerned about the investigations we were conducting.”
Barry Scheck was more direct when contacted by Falkenberg; “It’s a Saturday night massacre, pure and simple,” he said. “If you don’t like the evidence, you just get rid of the judges.”
Perry appointed Williamson County District Attorney John Bradley to replace Bassett as chairman of the commission. He immediately told the Dallas Morning News that “I don’t see how we can successfully have a meeting with the board turnover and lack of time for an orientation and education for the new board members.”
Sen. John Whitmire is chairman of the Senate Criminal Justice Committee which lobbied for the creation of the Texas Forensic Science Commission in the wake of the Houston City Police’s “crime lab” scandals in 2002 through 2004. Whitmire was quoted by Houston Chronicle columnist Rick Casey as saying he has never questioned Bradley “integrity” during his work with the district attorney during legislative sessions. Whitmire added, however, that he’s spoke with Bradley expressing his hope that the district attorney would not “let Perry’s politics pull him down.”
Having provided this political counsel, Sen. Whitmire is still not taking any chances. He told the media he would schedule a hearing in about a month to question Bradley about the goals and objectives of the commission under the district attorney’s leadership.
So it was that at 6:00 p.m. on February 17, 2004, Cameron “Todd” Willingham was led into the Texas death chamber at Huntsville to be executed. He was an angry man. Steven Mills described what happened next: “Willingham angrily told all those present to witness his execution that: ‘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.’” Mills reported Willingham then said goodbye to his friends and hurled curses at his former wife who was present to witness his execution for the murders of their three small children.
Was Willingham guilty? We don’t know. What we do know is that Gov. Rick Perry did not have any business, personal or political, interfering with an official state investigation trying to determine if the evidence used to convict Willingham was scientifically reliable. Gov. Perry has once again personally embarrassed himself and held the good State of Texas up for political ridicule on the national and international stage. What the governor did may sound like a good political strategy, since he put off a potentially embarrassing hearing and any subsequent report from the Commission for the foreseeable future. However, in the true American heartland where the roots of our sense of justice truly originate, the decision smacks of Boss Tweed politics and that of a frightened politician trying to stave off negative popular opinion threatening to send him packing from the Governor’s Mansion back to College Station.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair