Cameron Todd Willingham Execution: Rick Perry’s Role Deserves Scrutiny

Jason Linkins – First Posted: 9/2/11 03:25 PM ET – Updated: 9/2/11 05:31 PM ET

In the three weeks since Texas Gov. Rick Perry stormed into the 2012 presidential race, bigfooting past the Ames Straw Poll and surging to frontrunner status, the media have flocked to the new entrant like flies to cow manure. Along the way, they’ve asked questions of seeming pertinence. Is Rick Perry too extreme? Is he too religious? Even, is he “too dumb” to be president. The mission, as always, has been to set the horse race narrative first: Mitt Romney, the sort-of-reasonable, eager to please, awkward but electable technocrat, finally gets his foil in the swaggering Texas secessionist.

But one of the essential parts of Perry’s record in Texas involves the executions carried out by the state legal system during his tenure. In a state that’s distinguished itself in the use of capital punishment, the way it was applied under the Perry administration deserves scrutiny. The Texas Tribune calls for such this morning in a piece entitled “Under Perry, Executions Raise Questions.” And one name receives top billing:

As Gov. Rick Perry touts his tough-on-crime policies on the national political stage, the case of Cameron Todd Willingham will continue to be scrutinized. Scientists have raised questions about whether Willingham set the blaze that killed his three daughters and led to his 2004 execution.

Cameron Todd Willingham was convicted in August 1992 for the murder of his three young children in a fire that was deemed an arson by investigators. While on death row, a frantic effort to prove his innocence resulted in a full report which questioned the scientific legitimacy of the evidence used to convict Willingham. That report made its way to Gov. Perry’s office ahead of the zero hour, but it was all for nought — no stay of execution was granted in order to consider the new findings.

Willingham was executed by lethal injection on Feb. 17, 2004. Yet the efforts to exonerate Willingham only intensified, and in 2005, the Texas Forensic Science Commission decided to re-examine the case. The commission hired a nationally known fire scientist, Craig Beyler, to evaluate the evidence, and in his report, he came down on the same side as the scientists who had evaluated the case prior to Willingham’s execution: there was no credible scientific basis for the conclusion that arson had been committed.

Beyler was eventually scheduled to testify before the commission on Oct. 2, 2009. Two days before Beyler’s appearance, however, Rick Perry put a stop to it.

Two years later, we’re wondering if anyone wants to ask the presidential aspirant why.

* * * * *

In September 2009, the New Yorker published an article by David Grann titled “Trial By Fire.” It remains the most comprehensive bit of journalism on the Cameron Todd Willingham case.

Grann’s piece is masterful. It begins by presenting the case made against Willingham by the original arson investigators and prosecutors assigned to the case. Grann presents their brief with great care, and in the best possible light — so much so that by the time you are through the first section, it’s hard to not be convinced that Willingham was guilty of the crime. Then, in the rest of the article, that case is meticulously, ruthlessly torn down as Grann demonstrates that almost no science was brought to bear on the evidence.

It seems that Willingham’s first crime was that he was not a particularly virtuous man. A high school dropout, Willingham was an impoverished knockabout with a rap sheet of petty crimes, a penchant for heavy metal music and a reputation for abusing his wife. It was the birth of his first child, Amber, that seemed to put Willingham back on a path toward something like redemption. Twin girls followed a year later, and Willingham took up domestic responsibilities as his wife, Stacy, tended bar to earn money.

The fire that claimed the lives of the Willingham’s children broke out on the morning of Dec. 23, 1991. Firefighters were called to the scene after residents in the neighborhood noticed the flames, and a frantic, shirtless Willingham on his front porch calling for help. Firefighters had to restrain him several times to keep him from re-entering the house. Willingham would later claim to have been awoken by the fire and his daughters’ calls for help. Unable to reach them, he exited to house to try to get someone’s attention. His wife was out Christmas shopping at the time of the conflagration.

The fire investigators assigned to Willingham’s case saw evidence of arson in the remains of the house, and quickly established a theory of the crime. Per Grann:

By now, both investigators had a clear vision of what had happened. Someone had poured liquid accelerant throughout the children’s room, even under their beds, then poured some more along the adjoining hallway and out the front door, creating a “fire barrier” that prevented anyone from escaping; similarly, a prosecutor later suggested, the refrigerator in the kitchen had been moved to block the back-door exit. The house, in short, had been deliberately transformed into a death trap.The investigators collected samples of burned materials from the house and sent them to a laboratory that could detect the presence of a liquid accelerant. The lab’s chemist reported that one of the samples contained evidence of “mineral spirits,” a substance that is often found in charcoal-lighter fluid. The sample had been taken by the threshold of the front door.

That Willingham wasn’t held in particularly high regard worked against him once he was formally accused of the murder of his children. Witnesses, who had at the time of the incident recalled his desperate attempts to save his children, began to ascribe darker motives to his actions. Neighbors suggested he was “putting on a show” for their benefit, playing the frantic father in order to mask the fact that he had set fire to his own home, in what was presumably one of the most complicated and dangerous schemes ever conceived to get out of parental custody.

The deal was sealed with testimony from a jailhouse snitch named Johnny Webb, in which he claimed that Willingham had — out of the blue — confessed his guilt to him. (Webb would later attempt to recant his testimony, and allege that his story was purchased in exchange for beneficial treatment.)

As far as what would have motivated Willingham to take the lives of his children, the prosecutors were content to simply rely on the testimony of medical experts, who labelled Willingham a sociopath. After a two-day trial, a conviction was secured. Willingham was offered a life sentence in return for confessing to the crime, but he refused. That’s how he came to be on death row. (As Grann reported, the forensic psychology was flawed as well. Three years after the conclusion of Willingham’s trial, the forensic psychiatrist who worked the case for the prosecution, James Grigson, “was expelled from the American Psychiatric Association” after it came to light that he “had repeatedly arrived at a psychiatric diagnosis without first having examined the individuals in question,” among other ethics violations.)

Not long after, the evidence used to put him there came under scrutiny, and the case started to fall apart.

Here, Grann’s article is essential. He describes how Willingham’s plea for clemency ended up on the desk of Gerald Hurst, a renowned fire investigator and scientist whose patents (Hurst invented the Mylar balloon, among other things) afforded him the luxury of doing pro bono work watching the watchmen who investigate arson. With scant days remaining until Willingham’s execution, Hurst agreed to examine the case.

One thing that Hurst was in a unique position to appreciate was the fact that the conventional wisdom as to what constituted adequate arson investigation had shifted radically in the years since the conviction. As it happened, the scientific method was not exactly in vogue at the time of the Willingham fire — arson investigators instead relied on experiential lore handed down from one generation of arson investigator to another. For the most part, it was junk science. Hurst likened it to “witch-hunting.” By the year 2000, Grann reports, the scientific method was more widely embraced, but even then “there remained great variance in the field, with many practitioners still relying on the unverified techniques that had been used for generations.”

Hurst saw glaring flaws in the prosecution’s case almost immediately. Hurst discovered that most of the assertions made by the original arson investigators as to how the fire began in Willingham’s house, then subsequently moved and burned, had no basis in reality. Most significantly, the operative theory of the case — that a liquid accelerant had been used to start the fire — just didn’t make scientific sense.

As Grann reports:

Without having visited the fire scene, Hurst 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 efforts were in vain. The Board of Pardons and Paroles, to whom Hurst’s report was sent, denied Willingham’s petition for clemency. Gov. Perry subsequently refused to grant a 30-day stay of execution to consider the new findings. There’s no evidence to suggest that Hurst’s report was ever read, let alone considered, by any of the people who held Willingham’s life in their hands.

Grann’s piece ends on a somewhat hopeful note:

In 2005, Texas established a government commission to investigate allegations of error and misconduct by forensic scientists. … In mid-August, the noted fire scientist Craig Beyler, who was hired by the commission, completed his investigation. In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore and failed to eliminate potential accidental or alternative causes of the fire. He said that [arson investigator Manuel] Vasquez’s approach seemed to deny “rational reasoning” and was more “characteristic of mystics or psychics.” What’s more, Beyler determined that the investigation violated, as he put it to me, “not only the standards of today but even of the time period.” The commission is reviewing his findings, and plans to release its own report next year. Some legal scholars believe that the commission may narrowly assess the reliability of the scientific evidence. There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the “execution of a legally and factually innocent person.”

Grann’s piece was published on Sept. 7, 2009. Three weeks later, while newly locked in a re-election battle against Sen. Kay Bailey Hutchison (R-Texas), Rick Perry would put the kibosh on the commission’s investigation.

* * * * *

When it comes to the death penalty, no one does it quite like Texas. Since 1976, Texas has executed 473 people, the most of any state in the nation. By means of comparison, the second place finisher in that morbid competition, the commonwealth of Virginia, has executed only 109 prisoners in virtually the same amount of time. (Texas’ death penalty was re-enacted about two years before Virginia’s, though both states made their first post-re-enactment execution in 1982.) The death row population in Texas is currently the third highest in the country, behind that in California and Florida.

The issue of the death penalty had salience the last time the Republican Party had a Texas governor running for the presidential nomination. As governor, George W. Bush presided over 152 executions, a record among U.S. governors until Rick Perry took the reins and oversaw 234. While running for president, Bush made the most of having to assume these responsibilities, and he suggested that the matter was worthy of seriousness in his book, A Charge To Keep, in which he discussed his process of adjudication: “For every death penalty case, [legal counsel] brief[s] me thoroughly, reviews the arguments made by the prosecution and the defense, raises any doubts or problems or questions.”

But particular cases did raise doubt. In 1997, Bush denied clemency to Terry Washington, who was convicted of brutally murdering a 29-year-old restaurant manager named Beatrice Huling. That Washington was guilty of the crime was never in doubt. However, advocates for the accused protested that the death penalty was too severe a punishment in light of the fact that Washington was seriously mentally disabled, was the victim of sustained child abuse and received inadequate defense during his trial.

The best-known figure of Bush’s death row was Karla Faye Tucker, who drew even more media attention by virtue of the fact that she was to be the first woman executed in the state of Texas since the Civil War. Again, that Tucker had committed a brutal crime — she hacked two people to death with a pickax during a home invasion — was never in doubt. But Tucker, who was in the throes of drug addiction at the time of the murder, made enormous efforts to reform herself in prison. In the minds of many, she was successful. Pope John Paul II urged clemency, joined by several of the leading figures in the conservative Christian world, including Jerry Falwell and Pat Robertson. Current presidential aspirant Newt Gingrich did the same.

Bush disregarded those calls, and will probably be best known for his mocking imitation of Tucker — “Please… please, don’t kill me” — as reported by conservative pundit Tucker Carlson for Talk Magazine. (The Bush campaign strenuously denied Carlson’s claim.)

Similarly, in the summer of 2000, Bush made sure that a man named Shaka Sankofa was put to death by the state of Texas in the midst of his presidential run, despite an international effort to persuade the governor to review evidence suggesting an improper conviction.

Presidential campaign controversy over capital punishment is not limited to Republicans, either. In January of 1992, Ricky Ray Rector was executed in the state of Arkansas. Some 11 years prior, Rector got into a dispute at a nightclub in Conway, Ark., pulled a gun and fired several shots, killing one man and wounding two others. After living on the lam for three days, Rector arranged for a police officer named Robert Martin to take him into custody, but upon Martin’s arrival, Rector shot and killed him before turning the gun on himself.

Rector, however, did not die of his self-inflicted wounds, and was prosecuted despite the strenuous objections of his defense attorneys, who argued that he was not competent to stand trial. Rector’s diminished mental capacity formed the basis of pleas for clemency in his case.

However, Bill Clinton, in the midst of the 1992 presidential campaign, made a special trip back to Arkansas from the campaign trial to make sure Rector’s execution was proceeding as planned. Clinton’s actions were seen by some as base political grandstanding — campaign watchers could easily recall the poor reception Michael Dukakis received after stating at a debate that he would not support the death penalty even if his own wife had been murdered. Author Christopher Hitchens, in particular, fiercely criticized Clinton for his macabre political move, which he saw as a way of distracting the nation from the Gennifer Flowers scandal.

It is said that right up to the end, Rector had no capacity for understanding what was happening to him. He’s perhaps best known for setting aside the dessert portion of his last meal, believing full well that he could enjoy it later.

In each of these cases, there’s a fair amount with which to grapple. Death penalty opponents see in these instances ample reasons to curtail the practice — the mental fitness of defendants, past histories of abuse, inadequate legal defenses, even bona fide moral conversions. But despite the debate that raged back then, and the scrutiny that presidential aspirants were put under for their decisions in capital punishment cases, there’s one thing that Bush and Clinton could fall back upon when pressed — an actual crime had been committed.

That’s what makes the Cameron Todd Willingham case different for Rick Perry. It’s not just that the science says Willingham is innocent of the crime he was accused of, it’s that the science says that there was no crime in the first place. And that’s precisely the matter that the Texas Forensic Science Commission was set to explore when Perry stepped in and put a stop to it.

* * * * *

In 2002, a team of investigative journalists at KHOU-CBS TV in Houston undertook an investigation of Houston’s police crime laboratory, and uncovered a shocking litany of woes, including contaminated evidence, infrastructural rot and personnel who lacked the training and the expertise to do their jobs correctly. This touched off a scandal of national proportions. New York Times reporter Adam Liptak titled his 2003 report on the matter, “Worst Crime Lab In The Country?“, and subsequent reporting found that, while the disclosure immediately forced officials to retest “evidence in 360 cases,” officials faced “a much larger crisis that could involve many thousands of cases over 25 years.”

In 2005, the Texas state legislature passed House Bill 1068, which created the Texas Forensic Science Commission. The body was established as an independent entity that would investigate professional misconduct in the forensic field and that was open to public complaint. The Innocence Project went ahead and filed a complaint on the investigation of Cameron Todd Willingham, and the commission unanimously agreed to take up the matter. Under the chairmanship of Sam Bassett, the commission reached out to the aforementioned fire scientist Craig Beyler and asked him to consider the evidence and file an independent report on his findings. Not surprisingly, Beyler quickly came to the same conclusion as Gerald Hurst — that the evidence did not suggest arson, and that the prosecution’s theory of the case couldn’t pass scientific muster. After considering Beyler’s report, the group asked him to come before their body and make a formal presentation of his findings. That presentation was scheduled for October 2, 2009.

Houston Chronicle, Sept. 30, 2009:

Two days before it was set to hear crucial testimony, and midway through its investigation, Gov. Rick Perry on Wednesday abruptly removed three members of a state forensic science panel looking into a deadly fire for which a man was executed.Perry, acting more than three weeks after the current commissioners’ terms expired, named Williamson County District Attorney John Bradley as the new head of the nine-member Texas Forensic Science Commission, replacing Sam Bassett, an Austin lawyer. The commission was scheduled to hold a public hearing in the Dallas area Friday to continue its investigation into a December 1991 Corsicana fire in which three children perished. The children’s father, Cameron Todd Willingham, condemned after the fire was labeled an arson, was executed in 2004. Saying that two days were not sufficient time to familiarize himself with the case, Bradley canceled Friday’s meeting.

Bradley was a longtime political ally of Rick Perry, who nominated him to serve as the Williamson County District Attorney in 2001. And upon assuming the role of the chairman of the commission, Bradley distinguished himself as a master of sandbagging. Bradley quickly scuttled the ongoing investigation, postponing the commission’s scheduled meeting and essentially taking the Willingham matter back to square one.

The filmmakers behind the documentary film “Incendiary: The Willingham Case,” have done an excellent job documenting what unfolded as the commission came under Bradley’s reins. When the panel next met, Bradley relocated the meeting site to Harlingen, Texas — which is about as remote a location as you can visit in the entire United States. Besides presenting an enormous logistical burden for the commission’s members, the move was designed to ensure a minimum amount of media attention.

At the Harlingen meeting, Bradley dominated the proceedings by introducing a new set of rules that would govern the committee’s work. He imposed new hierarchies on the commission, called for fewer meetings, and generally bogged down the day in bureaucratic minutiae, effectively running out the clock on any substantive discussion of the Willingham case, despite the fact that it was still foremost in the minds of many of the panel’s members.

As the documentary film notes, the most significant change that Bradley imposed on the commission was that he mandated that most of the casework be divided up and worked on by small subcommittees within the larger body, despite the fact the commission had always worked together since its founding. Bradley had a good reason to call for the divided subcommittees — under the law, the smaller breakout meetings were not subject to Texas’ Open Meetings Act and could therefore be conducted behind closed doors.

Bradley appointed himself as the head of the subcommittee devoted to the Willingham investigation.

In an exchange between Bradley and a scrum of local reporters captured in “Incendiary,” Bradley demonstrates his talents in the delicate act of stonewalling:

BRADLEY: I think the commission is moving forward as quickly as they can.FIRST REPORTER: How would you describe what happened in the Willingham case? BRADLEY: I don’t comment on pending cases. FIRST REPORTER: Well, what was discussed here today? BRADLEY: Well, if you were here, you heard it and can report it. SECOND REPORTER: Will the panel that’s meeting about the Willingham case, will that be meeting in public or behind closed doors? BRADLEY: No, those are not public meetings. SECOND REPORTER: Why not? BRADLEY: Because they are less than a quorum, and these people need to meet and discuss these cases confidentially and then air that information before the full commission where a full public debate will take place. THIRD REPORTER: Must it be private? BRADLEY: No. THIRD REPORTER: And whose decision is it that it will be private? BRADLEY: The panel. FOURTH REPORTER: Have you checked with the other panel members? BRADLEY: No, we have not met yet. We were approved today. FIRST REPORTER: What about operating in the open with the panels? BRADLEY: If they decide to do so they will. FIRST REPORTER: Will you guys post the times and the meeting places of the panels, especially when you’re on the investigating panel? BRADLEY: If they choose to do so. FIRST REPORTER: Would you choose to do so? BRADLEY: No I don’t think that’s in the best interest of trying to move forward on this. FIRST REPORTER: Why not? BRADLEY: Because the ability to discuss and resolve these issues requires us to have these discussions in private. All of our issues will be released publicly during full commission meetings. FIRST REPORTER: Mr. Bradley, let me ask one more time. Why not establish the timetables or milestones for getting trial transcripts, videos and moving this case forward? As big as an investigation as you guys have? BRADLEY: I don’t have a different answer from the one I gave you last time. FIRST REPORTER: Which is? BRADLEY: I gave it last time, you have it on the microphone.

If Bradley’s efforts to lock down the wranglings of the commission over the WIllingham case in order to keep them out of sight and out of mind rubbed Rick Perry the wrong way, he never let on. Interestingly enough, however, Perry was not above insisting on the virtue of openness in governing when it suited his purpose. When the Texas gubernatorial race finally pitted Perry against Democratic nominee Bill White, Perry refused to enter into any public debate with his opponent.