Jason Linkins – email@example.com 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.