Cameron Todd Willingham was executed by the State of Texas on February 17, 2004. He was the seventh person put to death that year in the state, and the 320th person executed since 1982 when Texas resumed executions in the post-Furman era. To date, Texas has executed 515 inmates, far more than any other state. 276 of those executions were carried out under the current administration of Gov. Rick Perry. The governor has presided over more executions than any governor in the history of executions in the United States.
By all accounts, he is immensely proud of this dubious distinction.
Death penalty opponents, legal scholars, researchers, and some former law enforcement officials believe that, besides Willingham, five other innocent inmates have been put to death in Texas: Carlos DeLuna, Ruben Cantu, David Spence, Gary Graham, and Claude Jones. But it is the Willingham case, and especially Gov. Perry’s questionable role in the inmate’s execution, that continues to garner the lion’s share of the public’s attention about innocent persons having been executed in this country since 1977 when the nation’s moratorium on the death penalty ended.
The latest focus of attention came on August 17, 2014 in a San Antonio Express News editorial that screamed out this headline to the governor: “Posthumous pardon is the least Perry, state can do.” This editorial came on the heels of a report written by Maurice Possley of the newly-formed The Marshal Project (which deals with criminal justice issues) published in the Washington Post on August 4, 2015 that chronicles the prosecutorial misconduct that led to the wrongful conviction of Willingham. It is true that the official misconduct in the Willingham case far exceeds that documented in the Michael Morton case and indirectly woven into the misconduct issue is Gov. Perry’s role in this human tragedy.
The facts leading up to the Governor’s role in the case are these: two weeks before Willingham’s scheduled execution, the condemned inmate’s cousin, Patricia Cox, sought out Austin-based arson forensics expert Gerald Hurst.
She convinced the nationally renowned scientist to re-examine the fire evidence used during Willingham’s August 1992 that convinced a jury that he deliberately set fire to his Corsicana residence that claimed the lives of his three small children. The accused arsonist/killer had always maintained his innocence from the moment of his arrest, and, in fact, turned down a life sentence plea deal offered by the prosecution. Willingham continued to strenuously express his innocence from the gurney in the Texas death chamber moments before the concoction of lethal drugs killed him.
It did not take Hurst long to conclude that there had been no arson at the Willingham residence two days before Christmas in 1991. The Hurst report, issued thirteen days before Willingham’s scheduled execution, began with this opening: “A contemporary fire origin and cause analyst might wonder how anyone could have made so many critical errors interpreting the evidence” used to convict the condemned inmate. The now thoroughly repudiated forensic arson evidence (by at least a half dozen national respected arson experts) presented at Willingham’s trial came from Corsicana Deputy Fire Marshal Manuel Vasquez and Assistant Fire Chief Douglas Fogg.
If the Hurst report did not effectively exonerate Willingham, it certainly raised enough doubt about his guilt to warrant a stay of his scheduled February 17 execution. The Hurst report was delivered to Gov. Perry’s office four days before Willingham was scheduled to die. And Perry’s assistant general counsel Mike Schofield was aware of the report’s findings some ten days before the execution date. In fact, Schofield assured Cox the day before Willingham’s execution that the Hurst report was in the governor’s possession.
Perry, however, did not read the report, according to post-execution media reports based on what Cox said Schofield told her the day after the execution.
What does it say about a Governor presiding over the pending execution of a man who refuses to read a scientific report that effectively exonerates the condemned inmate?
In a September 18, 2009, Dallas Morning News report, Perry gave this inane comment to justify his decision to let the Willingham execution proceed without an in-depth review of the Hurst report: “I’m familiar with the latter-day reports on the arson side of it.” A reasonable interpretation came be drawn from this comment that Gov. Perry, like so many of his fellow Republican colleagues, is a “science denier.”
At the time the governor made this ridiculous comment about evolving forensic fire science evidence, this new evidence indisputably showed that the way the evidence was gathered, interpreted, and presented in court against Willingham was hopelessly flawed. But Perry did not care. He had the Hurst report before he sent Willingham to the death chamber, and he apparently knew this new science effectively exonerated the inmate. The Governor could have stop Willingham’s execution, but he knowingly sent a potentially innocent man to his death.
In 2009, Perry was gearing up for what was expected to be a serious gubernatorial challenge from fellow Republican, U.S. Senator Kay Bailey Hutchinson, in his bid to secure a third-term. The Willingham case was crawling out of the grave on the campaign trail to haunt the governor’s role in the execution. Perry reacted to this political threat in his typical iron-fisted manner—he kicked the case back in the grave by obstructing an official inquiry into whether the evidence used to convict Willingham was reliable.
On September 30, 2009, Perry replaced three members of the Texas Forensic Science Commission just two days before it was scheduled to hear testimony from Craig Beyler, a renowned Maryland fire science expert, who, as the request of the Commission, had studied all the arson forensic evidence in the Willingham case. And, like Hurst and a host of other experts, he had concluded that the fire at the Willingham residence had not been deliberately set.
The governor quickly 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 that year in securing the services of Beyler. The Commission had charged Beyler in January 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.
However, by concluding that the fire at the Willingham residence was not caused by arson, Beyler in his August 2009 report effectively declared Cameron Todd Willingham innocent. The report by itself was damning enough. Perry did not want Beyler giving testimony to the state run Commission that essentially concluded the same thing the Hurst report had found—Willingham was innocent and the governor had refused to even read the report before he sent the man to his death by lethal injection.
The Willingham execution again came back to haunt Perry two years later during a September 8, 2011 presidential debate moderated by NBC’s Brian Williams. The network news anchor prefaced a question that being the most prolific state executioner in “modern times,” did the governor struggle to “sleep at night” knowing that one of those persons he put to death could have been not guilty. With a Genghis Khan-like stare, Perry responded:
“No, sir. I’ve never struggled with that at all. The State of Texas has a very thoughtful, a very clear process in place—when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required.
“But in the State of Texas, if you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the State of Texas, and that is, you will be executed.”
The problem with that popular Texas politically conservative appeal is that Perry had more than ample evidence before him in February 2004 that Willingham was probably innocent. The condemned inmate simply did not get a “fair hearing” before the governor in the executive clemency process. Later, in 2009, knowing the scientific testimony would publicly demonstrate Willingham was innocent, Perry sabotaged the Forensic Science Commission’s inquiry into the evidence used to convict him. He was not about to let a state agency undermine his role in Willingham’s execution, especially with his sights firmly on the nation’s highest office.
As the evidence of “actual innocence” continued to accumulate, the Willingham family and the New York-based Innocence Project in October 2012 filed a petition for a posthumous pardon for Willingham. This past March, the Texas Board of Pardons and Paroles denied the petition, effectively relieving Gov.
Perry of having to personally address the case while he is pursuing his re-charged presidential aspirations. Innocence Project Director Barry Scheck said the board’s decision “illustrates that the clemency system is completely broken in Texas.”
In a denial letter, the board informed Scheck that a new application for a pardon could be filed in two years. By that time, Perry will no longer be in office and the 2016 presidential election will be over. The governor will have evaded the issue of having to decide whether to posthumously pardon an innocent man he personally allowed to be wrongfully executed.
The Governor, who is now facing another political crisis with a criminal indictment over his head, may be able to avoid the politics of the Willingham case, but he cannot avoid the shame of its history. At the end of the day, Gov.
Perry’s legacy will not be his successful attempts to lure business to Texas, but rather that he allowed an innocent man to be put to death in the state’s death chamber and then tried to cover it up. The Express News closed its editorial with a similar observation:
“The governor’s behavior in this matter bears scrutiny—and soul-searching. He impeded efforts by the state Forensic Science Commission to examine the evidence against Willingham.
“But Perry can step up now by making a posthumous pardon possible. This would require courage and would display strong moral character. The evidence is clear.
“But it has been for a long time.”
Gov. Rick Perry does not have either the courage or moral character to admit with a posthumous pardon of Cameron Todd Willingham that he let the innocent man be executed.