Perry
defends disputed '04 execution of Corsicana man
12:00 AM CDT on
Saturday, September 19, 2009
By TODD J. GILLMAN / The Dallas Morning News
tgillman@dallasnews.com
WASHINGTON – Gov. Rick Perry on Friday
strenuously defended the
execution of a Corsicana man whose conviction for killing his daughters
in a house fire hinged on an arson finding that top experts call junk
science.
"I'm familiar with the latter-day supposed
experts on
the arson side of it," Perry said, making quotation marks with his
fingers to underscore his skepticism.
Even without proof that
the fire was arson, he added, the court records he reviewed before the
execution of Cameron Todd Willingham in 2004 showed "clear and
compelling, overwhelming evidence that he was in fact the murderer of
his children."
These were the governor's first direct
comments on a case that has drawn withering criticism from top fire
experts.
Death
penalty critics view the Willingham case as a study in shoddy – or at
least outdated – science. And they consider it the first instance in 35
years of an executed man being proven innocent after death.
"Governor
Perry refuses to face the fact that Texas executed an innocent man on
his watch. Literally all of the evidence that was used to convict
Willingham has been disproven – all of it," said Barry Scheck,
co-director of the Innocence Project, a nonprofit group affiliated with
the Cardozo School of Law in New York that has championed the case. "He
is clearly refusing to face reality."
Three independent reviews
over the last five years, involving seven of the nation's top arson
experts, found no evidence the fire was set intentionally. The most
recent is a report commissioned by the Texas Forensic Science
Commission.
1991 deaths
The
author, renowned arson expert Craig Beyler, blasts the investigators
who handled the Willingham case, finding that they misread the evidence
and based their conclusions on a "poor understanding of fire science."
The commission says it is reviewing the
Beyler report and other evidence and will issue a conclusion next year.
The
fire took place two days before Christmas 1991, and claimed the lives
of Willingham's three daughters: 2-year-old Amber and 1-year-old twins
Karmon and Kameron.
State fire investigators and Corsicana fire
officials maintained that burn patterns, cracked windows and other
signs pointed to arson.
Willingham, 24 at the time and an
unemployed auto mechanic, had only superficial burns. He said he'd run
outside after Amber alerted him to the fire, looking for the others,
and couldn't re-enter because the blaze grew so quickly.
He had a
criminal record for burglary and grand larceny. He had once beaten his
pregnant wife, and a jailhouse snitch said he'd confessed.
At trial, prosecutors told jurors that
Willingham had intentionally left his daughters to die in a burning
home.
Protesting to the end
But
myriad scientists say that conclusion of arson was based on outdated
training that, at the time of trial 15 years ago, had already been
replaced by science-based methods that would have pointed to bad wiring
or a space heater.
Willingham protested his innocence to the
end.
Strapped to a gurney awaiting lethal injection on Feb. 17, 2004, he
asserted that "I am an innocent man – convicted of a crime I did not
do."
The Board of Pardons and Paroles, appointed
by the governor,
had rejected the appeal his lawyers had filed three days earlier. Hours
before the execution, the lawyers appealed directly to Perry.
The appeal included a report from a widely
respected fire expert, Gerald Hurst, that cast serious doubt on the
arson finding.
Hurst,
a Cambridge-educated chemist who was chief scientist for the nation's
largest explosive manufacturer, says the signs used as proof that an
accelerant had been poured were almost certainly the result of
"flashover" – an intense heat burst that causes an entire room to erupt
in flame.
The effects of flashover can mimic arson.
In 2004, the Chicago Tribune
asked three fire experts to evaluate the case. Their testing confirmed
Hurst's report. The case was recently featured in an extensive article
in The New Yorker, launching a new round of questions.
Perry confident
Perry,
in Washington for a campaign fundraiser Friday and a speech Saturday to
conservative activists, said during an hourlong session with reporters
that he does not believe the state executed an innocent man.
"No,"
he said. "We talked about this case at length. One of the most serious
and somber things that a governor of Texas deals with is the execution
of an individual. ... We go through a substantial amount of oversight."
In 2006, the Innocence Project, using state
open records law,
obtained records from Perry's office regarding the last-minute appeal.
The governor's office provided no documents that acknowledged the
contents of the appeal or its significance, Scheck's office said – a
"lack of action" that indicates the governor ignored critical analysis.
Perry, whose authority as governor is
limited to delaying an execution for 30 days, said he reviewed the case
extensively.
"I
get a document that has all of the court process. It gives you all of
his background, all of the court machinations on the legal side of it,
and the recommendation of both my legal side and the courts. It's a
pretty extensive amount of information," he said. "I have not seen
anything that would cause me to think that the decision that was made
by the courts of the state of Texas was not correct."
Dallas
News
It's not surprising to hear that Governor Perry is defending the
execution since it is his responsibility to see to it that the state
doesn't execute innocent people -- as it appears to have done in this
instance. The
so-called "experts" (with the fingers waving) during the trial
contributed to this miscarriage of justice and the governor's
gullibility a/o zest for political expediency led him to accept it and
to proceed with the execution in spite of expert testimony that had
emerged that served to exonerate Willingham.
I'm still left wondering just how much Perry knew at the time and how
well informed he is now. Has he read Grann's article in the New Yorker?
I suspect Perry himself was out to lunch and was relying on the Board
of Pardons. This is an excerpt from Grann's article:
"The Innocence Project obtained,
through the Freedom of
Information Act, all the records from the governor’s office and the
board pertaining to Hurst’s report. “The documents show that they
received the report, but neither office has any record of anyone
acknowledging it, taking note of its significance, responding to it, or
calling any attention to it within the government,” Barry Scheck said.
“The only reasonable conclusion is that the governor’s office and the
Board of Pardons and Paroles ignored scientific evidence.”
LaFayette Collins, who was a member of the
board at the time, told me
of the process, “You don’t vote guilt or innocence. You don’t retry the
trial. You just make sure everything is in order and there are no
glaring errors.” He noted that although the rules allowed for a hearing
to consider important new evidence, “in my time there had never been
one called.” When I asked him why Hurst’s report didn’t constitute
evidence of “glaring errors,” he said, “We get all kinds of reports,
but we don’t have the mechanisms to vet them.” Alvin Shaw, another
board member at the time, said that the case didn’t “ring a bell,”
adding, angrily, “Why would I want to talk about it?” Hurst calls the
board’s actions “unconscionable.”
http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann
I've read everything I can find on this and
I believe our governor, Rick Perry, was out to lunch and is covering
his tracks now, pretending to a concern that was absent. Perhaps I'm
wrong. Please read this article and ask him when you see him.
Ian Reid ireid@realtime.net
Trial by Fire
Did Texas execute an innocent man?
The fire moved quickly
through the house, a
one-story wood-frame structure in a working-class neighborhood of
Corsicana, in northeast Texas. Flames spread along the walls, bursting
through doorways, blistering paint and tiles and furniture. Smoke
pressed against the ceiling, then banked downward, seeping into each
room and through crevices in the windows, staining the morning sky.
Buffie
Barbee, who was eleven years old and lived two houses down, was playing
in her back yard when she smelled the smoke. She ran inside and told
her mother, Diane, and they hurried up the street; that’s when they saw
the smoldering house and Cameron Todd Willingham standing on the front
porch, wearing only a pair of jeans, his chest blackened with soot, his
hair and eyelids singed. He was screaming, “My babies are burning up!”
His children—Karmon and Kameron, who were one-year-old twin girls, and
two-year-old Amber—were trapped inside.
Willingham told the
Barbees to call the Fire Department, and while Diane raced down the
street to get help he found a stick and broke the children’s bedroom
window. Fire lashed through the hole. He broke another window; flames
burst through it, too, and he retreated into the yard, kneeling in
front of the house. A neighbor later told police that Willingham
intermittently cried, “My babies!” then fell silent, as if he had
“blocked the fire out of his mind.”
Diane Barbee, returning to
the scene, could feel intense heat radiating off the house. Moments
later, the five windows of the children’s room exploded and flames
“blew out,” as Barbee put it. Within minutes, the first firemen had
arrived, and Willingham approached them, shouting that his children
were in their bedroom, where the flames were thickest. A fireman sent
word over his radio for rescue teams to “step on it.”
More men
showed up, uncoiling hoses and aiming water at the blaze. One fireman,
who had an air tank strapped to his back and a mask covering his face,
slipped through a window but was hit by water from a hose and had to
retreat. He then charged through the front door, into a swirl of smoke
and fire. Heading down the main corridor, he reached the kitchen, where
he saw a refrigerator blocking the back door.
Todd Willingham,
looking on, appeared to grow more hysterical, and a police chaplain
named George Monaghan led him to the back of a fire truck and tried to
calm him down. Willingham explained that his wife, Stacy, had gone out
earlier that morning, and that he had been jolted from sleep by Amber
screaming, “Daddy! Daddy!”
“My little girl was trying to wake me up and
tell me about the fire,” he said, adding, “I couldn’t get my babies
out.”
While
he was talking, a fireman emerged from the house, cradling Amber. As
she was given C.P.R., Willingham, who was twenty-three years old and
powerfully built, ran to see her, then suddenly headed toward the
babies’ room. Monaghan and another man restrained him. “We had to
wrestle with him and then handcuff him, for his and our protection,”
Monaghan later told police. “I received a black eye.” One of the first
firemen at the scene told investigators that, at an earlier point, he
had also held Willingham back. “Based on what I saw on how the fire was
burning, it would have been crazy for anyone to try and go into the
house,” he said.
Willingham was taken to a hospital, where he
was told that Amber—who
had actually been found in the master bedroom—had died of smoke
inhalation. Kameron and Karmon had been lying on the floor of the
children’s bedroom, their bodies severely burned. According to the
medical examiner, they, too, died from smoke inhalation.
News
of the tragedy, which took place on December 23, 1991, spread through
Corsicana. A small city fifty-five miles northeast of Waco, it had once
been the center of Texas’s first oil boom, but many of the wells had
since dried up, and more than a quarter of the city’s twenty thousand
inhabitants had fallen into poverty. Several stores along the main
street were shuttered, giving the place the feel of an abandoned
outpost.
Willingham and his wife, who was twenty-two
years old,
had virtually no money. Stacy worked in her brother’s bar, called Some
Other Place, and Willingham, an unemployed auto mechanic, had been
caring for the kids. The community took up a collection to help the
Willinghams pay for funeral arrangements.
Fire investigators,
meanwhile, tried to determine the cause of the blaze. (Willingham gave
authorities permission to search the house: “I know we might not ever
know all the answers, but I’d just like to know why my babies were
taken from me.”) Douglas Fogg, who was then the assistant fire chief in
Corsicana, conducted the initial inspection. He was tall, with a crew
cut, and his voice was raspy from years of inhaling smoke from fires
and cigarettes. He had grown up in Corsicana and, after graduating from
high school, in 1963, he had joined the Navy, serving as a medic in
Vietnam, where he was wounded on four occasions. He was awarded a
Purple Heart each time. After he returned from Vietnam, he became a
firefighter, and by the time of the Willingham blaze he had been
battling fire—or what he calls “the beast”—for more than twenty years,
and had become a certified arson investigator. “You learn that fire
talks to you,” he told me.
He was soon joined on the case by one
of the state’s leading arson sleuths, a deputy fire marshal named
Manuel Vasquez, who has since died. Short, with a paunch, Vasquez had
investigated more than twelve hundred fires. Arson investigators have
always been considered a special breed of detective. In the 1991 movie
“Backdraft,” a heroic arson investigator says of fire, “It breathes, it
eats, and it hates. The only way to beat it is to think like it. To
know that this flame will spread this way across the door and up across
the ceiling.” Vasquez, who had previously worked in Army intelligence,
had several maxims of his own. One was “Fire does not destroy
evidence—it creates it.” Another was “The fire tells the story. I am
just the interpreter.” He cultivated a Sherlock Holmes-like aura of
invincibility. Once, he was asked under oath whether he had ever been
mistaken in a case. “If I have, sir, I don’t know,” he responded. “It’s
never been pointed out.”
Vasquez and Fogg visited the
Willinghams’ house four days after the blaze. Following protocol, they
moved from the least burned areas toward the most damaged ones. “It is
a systematic method,” Vasquez later testified, adding, “I’m just
collecting information. . . . I have not made any determination. I
don’t have any preconceived idea.”
The men slowly toured the
perimeter of the house, taking notes and photographs, like
archeologists mapping out a ruin. Upon opening the back door, Vasquez
observed that there was just enough space to squeeze past the
refrigerator blocking the exit. The air smelled of burned rubber and
melted wires; a damp ash covered the ground, sticking to their boots.
In the kitchen, Vasquez and Fogg discerned only smoke and heat damage—a
sign that the fire had not originated there—and so they pushed deeper
into the nine-hundred-and-seventy-five-square-foot building. A central
corridor led past a utility room and the master bedroom, then past a
small living room, on the left, and the children’s bedroom, on the
right, ending at the front door, which opened onto the porch. Vasquez
tried to take in everything, a process that he compared to entering
one’s mother-in-law’s house for the first time: “I have the same
curiosity.”
In the utility room, he noticed on the wall
pictures of skulls and what he later described as an image of “the Grim
Reaper.” Then he turned into the master bedroom, where Amber’s body had
been found. Most of the damage there was also from smoke and heat,
suggesting that the fire had started farther down the hallway, and he
headed that way, stepping over debris and ducking under insulation and
wiring that hung down from the exposed ceiling.
As he and Fogg
removed some of the clutter, they noticed deep charring along the base
of the walls. Because gases become buoyant when heated, flames
ordinarily burn upward. But Vasquez and Fogg observed that the fire had
burned extremely low down, and that there were peculiar char patterns
on the floor, shaped like puddles.
Vasquez’s mood darkened. He
followed the “burn trailer”—the path etched by the fire—which led from
the hallway into the children’s bedroom. Sunlight filtering through the
broken windows illuminated more of the irregularly shaped char
patterns. A flammable or combustible liquid doused on a floor will
cause a fire to concentrate in these kinds of pockets, which is why
investigators refer to them as “pour patterns” or “puddle
configurations.”
The fire had burned through layers of
carpeting
and tile and plywood flooring. Moreover, the metal springs under the
children’s beds had turned white—a sign that intense heat had radiated
beneath them. Seeing that the floor had some of the deepest burns,
Vasquez deduced that it had been hotter than the ceiling, which, given
that heat rises, was, in his words, “not normal.”
Fogg examined
a piece of glass from one of the broken windows. It contained a
spiderweb-like pattern—what fire investigators call “crazed glass.”
Forensic textbooks had long described the effect as a key indicator
that a fire had burned “fast and hot,” meaning that it had been fuelled
by a liquid accelerant, causing the glass to fracture.
The men
looked again at what appeared to be a distinct burn trailer through the
house: it went from the children’s bedroom into the corridor, then
turned sharply to the right and proceeded out the front door. To the
investigators’ surprise, even the wood under the door’s aluminum
threshold was charred. On the concrete floor of the porch, just outside
the front door, Vasquez and Fogg noticed another unusual thing: brown
stains, which, they reported, were consistent with the presence of an
accelerant.
The men scanned the walls for soot marks
that
resembled a “V.” When an object catches on fire, it creates such a
pattern, as heat and smoke radiate outward; the bottom of the “V” can
therefore point to where a fire began. In the Willingham house, there
was a distinct “V” in the main corridor. Examining it and other burn
patterns, Vasquez identified three places where fire had originated: in
the hallway, in the children’s bedroom, and at the front door. Vasquez
later testified that multiple origins pointed to one conclusion: the
fire was “intentionally set by human hands.”
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.
The fire was now considered a
triple homicide, and Todd Willingham—the only person, besides the
victims, known to have been in the house at the time of the
blaze—became the prime suspect.
Police and fire
investigators canvassed the neighborhood, interviewing witnesses.
Several, like Father Monaghan, initially portrayed Willingham as
devastated by the fire. Yet, over time, an increasing number of
witnesses offered damning statements. Diane Barbee said that she had
not seen Willingham try to enter the house until after the authorities
arrived, as if he were putting on a show. And when the children’s room
exploded with flames, she added, he seemed more preoccupied with his
car, which he moved down the driveway. Another neighbor reported that
when Willingham cried out for his babies he “did not appear to be
excited or concerned.” Even Father Monaghan wrote in a statement that,
upon further reflection, “things were not as they seemed. I had the
feeling that [Willingham] was in complete control.”
The police
began to piece together a disturbing profile of Willingham. Born in
Ardmore, Oklahoma, in 1968, he had been abandoned by his mother when he
was a baby. His father, Gene, who had divorced his mother, eventually
raised him with his stepmother, Eugenia. Gene, a former U.S. marine,
worked in a salvage yard, and the family lived in a cramped house; at
night, they could hear freight trains rattling past on a nearby track.
Willingham, who had what the family called the “classic Willingham
look”—a handsome face, thick black hair, and dark eyes—struggled in
school, and as a teen-ager began to sniff paint. When he was seventeen,
Oklahoma’s Department of Human Services evaluated him, and reported,
“He likes ‘girls,’ music, fast cars, sharp trucks, swimming, and
hunting, in that order.” Willingham dropped out of high school, and
over time was arrested for, among other things, driving under the
influence, stealing a bicycle, and shoplifting.
In 1988, he met
Stacy, a senior in high school, who also came from a troubled
background: when she was four years old, her stepfather had strangled
her mother to death during a fight. Stacy and Willingham had a
turbulent relationship. Willingham, who was unfaithful, drank too much
Jack Daniel’s, and sometimes hit Stacy—even when she was pregnant. A
neighbor said that he once heard Willingham yell at her, “Get up,
bitch, and I’ll hit you again.”
On December 31st, the
authorities brought Willingham in for questioning. Fogg and Vasquez
were present for the interrogation, along with Jimmie Hensley, a police
officer who was working his first arson case. Willingham said that
Stacy had left the house around 9 A.M.
to pick up a Christmas present for the kids, at the Salvation Army.
“After she got out of the driveway, I heard the twins cry, so I got up
and gave them a bottle,” he said. The children’s room had a safety gate
across the doorway, which Amber could climb over but not the twins, and
he and Stacy often let the twins nap on the floor after they drank
their bottles. Amber was still in bed, Willingham said, so he went back
into his room to sleep. “The next thing I remember is hearing ‘Daddy,
Daddy,’ ” he recalled. “The house was already full of smoke.” He said
that he got up, felt around the floor for a pair of pants, and put them
on. He could no longer hear his daughter’s voice (“I heard that last
‘Daddy, Daddy’ and never heard her again”), and he hollered, “Oh God—
Amber, get out of the house! Get out of the house!’ ”
He never
sensed that Amber was in his room, he said. Perhaps she had already
passed out by the time he stood up, or perhaps she came in after he
left, through a second doorway, from the living room. He said that he
went down the corridor and tried to reach the children’s bedroom. In
the hallway, he said, “you couldn’t see nothing but black.” The air
smelled the way it had when their microwave had blown up, three weeks
earlier—like “wire and stuff like that.” He could hear sockets and
light switches popping, and he crouched down, almost crawling. When he
made it to the children’s bedroom, he said, he stood and his hair
caught on fire. “Oh God, I never felt anything that hot before,” he
said of the heat radiating out of the room.
After he patted out
the fire on his hair, he said, he got down on the ground and groped in
the dark. “I thought I found one of them once,” he said, “but it was a
doll.” He couldn’t bear the heat any longer. “I felt myself passing
out,” he said. Finally, he stumbled down the corridor and out the front
door, trying to catch his breath. He saw Diane Barbee and yelled for
her to call the Fire Department. After she left, he insisted, he tried
without success to get back inside.
The investigators asked him
if he had any idea how the fire had started. He said that he wasn’t
sure, though it must have originated in the children’s room, since that
was where he first saw flames; they were glowing like “bright lights.”
He and Stacy used three space heaters to keep the house warm, and one
of them was in the children’s room. “I taught Amber not to play with
it,” he said, adding that she got “whuppings every once in a while for
messing with it.” He said that he didn’t know if the heater, which had
an internal flame, was turned on. (Vasquez later testified that when he
had checked the heater, four days after the fire, it was in the “Off”
position.) Willingham speculated that the fire might have been started
by something electrical: he had heard all that popping and crackling.
When
pressed whether someone might have a motive to hurt his family, he said
that he couldn’t think of anyone that “cold-blooded.” He said of his
children, “I just don’t understand why anybody would take them, you
know? We had three of the most pretty babies anybody could have ever
asked for.” He went on, “Me and Stacy’s been together for four years,
but off and on we get into a fight and split up for a while and I think
those babies is what brought us so close together . . . neither one of
us . . . could live without them kids.” Thinking of Amber, he said, “To
tell you the honest-to-God’s truth, I wish she hadn’t woke me up.”
During
the interrogation, Vasquez let Fogg take the lead. Finally, Vasquez
turned to Willingham and asked a seemingly random question: had he put
on shoes before he fled the house?
“No, sir,” Willingham replied.
A map of the house was on a table between
the men, and Vasquez pointed to it. “You walked out this way?” he said.
Willingham said yes.
Vasquez
was now convinced that Willingham had killed his children. If the floor
had been soaked with a liquid accelerant and the fire had burned low,
as the evidence suggested, Willingham could not have run out of the
house the way he had described without badly burning his feet. A
medical report indicated that his feet had been unscathed.
Willingham
insisted that, when he left the house, the fire was still around the
top of the walls and not on the floor. “I didn’t have to jump through
any flames,” he said. Vasquez believed that this was impossible, and
that Willingham had lit the fire as he was retreating—first, torching
the children’s room, then the hallway, and then, from the porch, the
front door. Vasquez later said of Willingham, “He told me a story of
pure fabrication. . . . He just talked and he talked and all he did was
lie.”
Still, there was no clear motive. The
children had
life-insurance policies, but they amounted to only fifteen thousand
dollars, and Stacy’s grandfather, who had paid for them, was listed as
the primary beneficiary. Stacy told investigators that even though
Willingham hit her he had never abused the children—“Our kids were
spoiled rotten,” she said—and she did not believe that Willingham could
have killed them.
Ultimately, the authorities concluded that
Willingham was a man without a conscience whose serial crimes had
climaxed, almost inexorably, in murder. John Jackson, who was then the
assistant district attorney in Corsicana, was assigned to prosecute
Willingham’s case. He later told the Dallas Morning News that
he considered Willingham to be “an utterly sociopathic individual” who
deemed his children “an impediment to his lifestyle.” Or, as the local
district attorney, Pat Batchelor, put it, “The children were
interfering with his beer drinking and dart throwing.”
On the night of January 8, 1992, two weeks
after the fire, Willingham was riding in a car with Stacy when SWAT
teams surrounded them, forcing them to the side of the road. “They
pulled guns out like we had just robbed ten banks,” Stacy later
recalled. “All we heard was ‘click, click.’ . . . Then they arrested
him.”
Willingham
was charged with murder. Because there were multiple victims, he was
eligible for the death penalty, under Texas law. Unlike many other
prosecutors in the state, Jackson, who had ambitions of becoming a
judge, was personally opposed to capital punishment. “I don’t think
it’s effective in deterring criminals,” he told me. “I just don’t think
it works.” He also considered it wasteful: because of the expense of
litigation and the appeals process, it costs, on average, $2.3 million
to execute a prisoner in Texas—about three times the cost of
incarcerating someone for forty years. Plus, Jackson said, “What’s the
recourse if you make a mistake?” Yet his boss, Batchelor, believed
that, as he once put it, “certain people who commit bad enough crimes
give up the right to live,” and Jackson came to agree that the heinous
nature of the crime in the Willingham case—“one of the worst in terms
of body count” that he had ever tried—mandated death.
Willingham
couldn’t afford to hire lawyers, and was assigned two by the state:
David Martin, a former state trooper, and Robert Dunn, a local defense
attorney who represented everyone from alleged murderers to spouses in
divorce cases—a “Jack-of-all-trades,” as he calls himself. (“In a small
town, you can’t say ‘I’m a so-and-so lawyer,’ because you’ll starve to
death,” he told me.)
Not long after Willingham’s arrest,
authorities received a message from a prison inmate named Johnny Webb,
who was in the same jail as Willingham. Webb alleged that Willingham
had confessed to him that he took “some kind of lighter fluid,
squirting [it] around the walls and the floor, and set a fire.” The
case against Willingham was considered airtight.
Even so,
several of Stacy’s relatives—who, unlike her, believed that Willingham
was guilty—told Jackson that they preferred to avoid the anguish of a
trial. And so, shortly before jury selection, Jackson approached
Willingham’s attorneys with an extraordinary offer: if their client
pleaded guilty, the state would give him a life sentence. “I was really
happy when I thought we might have a deal to avoid the death penalty,”
Jackson recalls.
Willingham’s lawyers were equally pleased.
They
had little doubt that he had committed the murders and that, if the
case went before a jury, he would be found guilty, and, subsequently,
executed. “Everyone thinks defense lawyers must believe their clients
are innocent, but that’s seldom true,” Martin told me. “Most of the
time, they’re guilty as sin.” He added of Willingham, “All the evidence
showed that he was one hundred per cent guilty. He poured accelerant
all over the house and put lighter fluid under the kids’ beds.” It was,
he said, “a classic arson case”: there were “puddle patterns all over
the place—no disputing those.”
Martin and Dunn advised Willingham
that he should accept the offer, but he refused. The lawyers asked his
father and stepmother to speak to him. According to Eugenia, Martin
showed them photographs of the burned children and said, “Look what
your son did. You got to talk him into pleading, or he’s going to be
executed.”
His parents went to see their son in jail.
Though
his father did not believe that he should plead guilty if he were
innocent, his stepmother beseeched him to take the deal. “I just wanted
to keep my boy alive,” she told me.
Willingham was implacable. “I
ain’t gonna plead to something I didn’t do, especially killing my own
kids,” he said. It was his final decision. Martin says, “I thought it
was nuts at the time—and I think it’s nuts now.”
Willingham’s
refusal to accept the deal confirmed the view of the prosecution, and
even that of his defense lawyers, that he was an unrepentant killer.
In
August, 1992, the trial commenced in the old stone courthouse in
downtown Corsicana. Jackson and a team of prosecutors summoned a
procession of witnesses, including Johnny Webb and the Barbees. The
crux of the state’s case, though, remained the scientific evidence
gathered by Vasquez and Fogg. On the stand, Vasquez detailed what he
called more than “twenty indicators” of arson.
“Do you have an opinion as to who started
the fire?” one of the prosecutors asked.
“Yes, sir,” Vasquez said. “Mr. Willingham.”
The prosecutor asked Vasquez what he thought
Willingham’s intent was in lighting the fire. “To kill the little
girls,” he said.
The
defense had tried to find a fire expert to counter Vasquez and Fogg’s
testimony, but the one they contacted concurred with the prosecution.
Ultimately, the defense presented only one witness to the jury: the
Willinghams’ babysitter, who said she could not believe that Willingham
could have killed his children. (Dunn told me that Willingham had
wanted to testify, but Martin and Dunn thought that he would make a bad
witness.) The trial ended after two days.
During his closing
arguments, Jackson said that the puddle configurations and pour
patterns were Willingham’s inadvertent “confession,” burned into the
floor. Showing a Bible that had been salvaged from the fire, Jackson
paraphrased the words of Jesus from the Gospel of Matthew: “Whomsoever
shall harm one of my children, it’s better for a millstone to be hung
around his neck and for him to be cast in the sea.”
The jury
was out for barely an hour before returning with a unanimous guilty
verdict. As Vasquez put it, “The fire does not lie.
II
When
Elizabeth Gilbert approached the prison guard, on a spring day in 1999,
and said Cameron Todd Willingham’s name, she was uncertain about what
she was doing. A forty-seven-year-old French teacher and playwright
from Houston, Gilbert was divorced with two children. She had never
visited a prison before. Several weeks earlier, a friend, who worked at
an organization that opposed the death penalty, had encouraged her to
volunteer as a pen pal for an inmate on death row, and Gilbert had
offered her name and address. Not long after, a short letter, written
with unsteady penmanship, arrived from Willingham. “If you wish to
write back, I would be honored to correspond with you,” he said. He
also asked if she might visit him. Perhaps out of a writer’s curiosity,
or perhaps because she didn’t feel quite herself (she had just been
upset by news that her ex-husband was dying of cancer), she agreed. Now
she was standing in front of the decrepit penitentiary in Huntsville,
Texas—a place that inmates referred to as “the death pit.”
She
filed past a razor-wire fence, a series of floodlights, and a
checkpoint, where she was patted down, until she entered a small
chamber. Only a few feet in front of her was a man convicted of
multiple infanticide. He was wearing a white jumpsuit with “DR”—for
death row—printed on the back, in large black letters. He had a tattoo
of a serpent and a skull on his left biceps. He stood nearly six feet
tall and was muscular, though his legs had atrophied after years of
confinement.
A Plexiglas window separated Willingham from
her;
still, Gilbert, who had short brown hair and a bookish manner, stared
at him uneasily. Willingham had once fought another prisoner who called
him a “baby killer,” and since he had been incarcerated, seven years
earlier, he had committed a series of disciplinary infractions that had
periodically landed him in the segregation unit, which was known as
“the dungeon.”
Willingham greeted her politely. He seemed
grateful that she had come. After his conviction, Stacy had campaigned
for his release. She wrote to Ann Richards, then the governor of Texas,
saying, “I know him in ways that no one else does when it comes to our
children. Therefore, I believe that there is no way he could have
possibly committed this crime.” But within a year Stacy had filed for
divorce, and Willingham had few visitors except for his parents, who
drove from Oklahoma to see him once a month. “I really have no one
outside my parents to remind me that I am a human being, not the animal
the state professes I am,” he told Gilbert at one point.
He
didn’t want to talk about death row. “Hell, I live here,” he later
wrote her. “When I have a visit, I want to escape from here.” He asked
her questions about her teaching and art. He expressed fear that, as a
playwright, she might find him a “one-dimensional character,” and
apologized for lacking social graces; he now had trouble separating the
mores in prison from those of the outside world.
When Gilbert
asked him if he wanted something to eat or drink from the vending
machines, he declined. “I hope I did not offend you by not accepting
any snacks,” he later wrote her. “I didn’t want you to feel I was there
just for something like that.”
She had been warned that
prisoners often tried to con visitors. He appeared to realize this,
subsequently telling her, “I am just a simple man. Nothing else. And to
most other people a convicted killer looking for someone to
manipulate.”
Their visit lasted for two hours, and
afterward
they continued to correspond. She was struck by his letters, which
seemed introspective, and were not at all what she had expected. “I am
a very honest person with my feelings,” he wrote her. “I will not
bullshit you on how I feel or what I think.” He said that he used to be
stoic, like his father. But, he added, “losing my three daughters . . .
my home, wife and my life, you tend to wake up a little. I have learned
to open myself.”
She agreed to visit him again, and when she
returned, several weeks later, he was visibly moved. “Here I am this
person who nobody on the outside is ever going to know as a human, who
has lost so much, but still trying to hold on,” he wrote her afterward.
“But you came back! I don’t think you will ever know of what importance
that visit was in my existence.”
They kept exchanging letters,
and she began asking him about the fire. He insisted that he was
innocent and that, if someone had poured accelerant through the house
and lit it, then the killer remained free. Gilbert wasn’t naïve—she
assumed that he was guilty. She did not mind giving him solace, but she
was not there to absolve him.
Still, she had become curious
about the case, and one day that fall she drove down to the courthouse
in Corsicana to review the trial records. Many people in the community
remembered the tragedy, and a clerk expressed bewilderment that anyone
would be interested in a man who had burned his children alive.
Gilbert
took the files and sat down at a small table. As she examined the
eyewitness accounts, she noticed several contradictions. Diane Barbee
had reported that, before the authorities arrived at the fire,
Willingham never tried to get back into the house—yet she had been
absent for some time while calling the Fire Department. Meanwhile, her
daughter Buffie had reported witnessing Willingham on the porch
breaking a window, in an apparent effort to reach his children. And the
firemen and police on the scene had described Willingham frantically
trying to get into the house.
The witnesses’ testimony also
grew more damning after authorities had concluded, in the beginning of
January, 1992, that Willingham was likely guilty of murder. In Diane
Barbee’s initial statement to authorities, she had portrayed Willingham
as “hysterical,” and described the front of the house exploding. But on
January 4th, after arson investigators began suspecting Willingham of
murder, Barbee suggested that he could have gone back inside to rescue
his children, for at the outset she had seen only “smoke coming from
out of the front of the house”—smoke that was not “real thick.”
An
even starker shift occurred with Father Monaghan’s testimony. In his
first statement, he had depicted Willingham as a devastated father who
had to be repeatedly restrained from risking his life. Yet, as
investigators were preparing to arrest Willingham, he concluded that
Willingham had been too emotional (“He seemed to have the type
of distress that a woman who had given birth would have upon seeing her
children die”); and he expressed a “gut feeling” that Willingham had
“something to do with the setting of the fire.”
Dozens of
studies have shown that witnesses’ memories of events often change when
they are supplied with new contextual information. Itiel Dror, a
cognitive psychologist who has done extensive research on eyewitness
and expert testimony in criminal investigations, told me, “The mind is
not a passive machine. Once you believe in something—once you expect
something—it changes the way you perceive information and the way your
memory recalls it.”
After Gilbert’s visit to the courthouse,
she kept wondering about Willingham’s motive, and she pressed him on
the matter. In response, he wrote, of the death of his children, “I do
not talk about it much anymore and it is still a very powerfully
emotional pain inside my being.” He admitted that he had been a
“sorry-ass husband” who had hit Stacy—something he deeply regretted.
But he said that he had loved his children and would never have hurt
them. Fatherhood, he said, had changed him; he stopped being a hoodlum
and “settled down” and “became a man.” Nearly three months before the
fire, he and Stacy, who had never married, wed at a small ceremony in
his home town of Ardmore. He said that the prosecution had seized upon
incidents from his past and from the day of the fire to create a
portrait of a “demon,” as Jackson, the prosecutor, referred to him. For
instance, Willingham said, he had moved the car during the fire simply
because he didn’t want it to explode by the house, further threatening
the children.
Gilbert was unsure what to make of his
story, and
she began to approach people who were involved in the case, asking them
questions. “My friends thought I was crazy,” Gilbert recalls. “I’d
never done anything like this in my life.”
One morning, when
Willingham’s parents came to visit him, Gilbert arranged to see them
first, at a coffee shop near the prison. Gene, who was in his
seventies, had the Willingham look, though his black hair had gray
streaks and his dark eyes were magnified by glasses. Eugenia, who was
in her fifties, with silvery hair, was as sweet and talkative as her
husband was stern and reserved. The drive from Oklahoma to Texas took
six hours, and they had woken at three in the morning; because they
could not afford a motel, they would have to return home later that
day. “I feel like a real burden to them,” Willingham had written
Gilbert.
As Gene and Eugenia sipped coffee, they told
Gilbert how
grateful they were that someone had finally taken an interest in Todd’s
case. Gene said that his son, though he had flaws, was no killer.
The
evening before the fire, Eugenia said, she had spoken on the phone with
Todd. She and Gene were planning on visiting two days later, on
Christmas Eve, and Todd told her that he and Stacy and the kids had
just picked up family photographs. “He said, ‘We got your pictures for
Christmas,’ ” she recalled. “He put Amber on the phone, and she was
tattling on one of the twins. Todd didn’t seem upset. If something was
bothering him, I would have known.”
Gene and Eugenia got up to
go: they didn’t want to miss any of the four hours that were allotted
for the visit with their son. Before they left, Gene said, “You’ll let
us know if you find anything, won’t you?”
Over the next few
weeks, Gilbert continued to track down sources. Many of them, including
the Barbees, remained convinced that Willingham was guilty, but several
of his friends and relatives had doubts. So did some people in law
enforcement. Willingham’s former probation officer in Oklahoma, Polly
Goodin, recently told me that Willingham had never demonstrated bizarre
or sociopathic behavior. “He was probably one of my favorite kids,” she
said. Even a former judge named Bebe Bridges—who had often stood, as
she put it, on the “opposite side” of Willingham in the legal system,
and who had sent him to jail for stealing—told me that she could not
imagine him killing his children. “He was polite, and he seemed to
care,” she said. “His convictions had been for dumb-kid stuff. Even the
things stolen weren’t significant.” Several months before the fire,
Willingham tracked Goodin down at her office, and proudly showed her
photographs of Stacy and the kids. “He wanted Bebe and me to know he’d
been doing good,” Goodin recalled.
Eventually, Gilbert returned
to Corsicana to interview Stacy, who had agreed to meet at the
bed-and-breakfast where Gilbert was staying. Stacy was slightly plump,
with pale, round cheeks and feathered dark-blond hair; her bangs were
held in place by gel, and her face was heavily made up. According to a
tape recording of the conversation, Stacy said that nothing unusual had
happened in the days before the fire. She and Willingham had not
fought, and were preparing for the holiday. Though Vasquez, the arson
expert, had recalled finding the space heater off, Stacy was sure that,
at least on the day of the incident—a cool winter morning—it had been
on. “I remember turning it down,” she recalled. “I always thought,
Gosh, could Amber have put something in there?” Stacy added that, more
than once, she had caught Amber “putting things too close to it.”
Willingham
had often not treated her well, she recalled, and after his
incarceration she had left him for a man who did. But she didn’t think
that her former husband should be on death row. “I don’t think he did
it,” she said, crying.
Though only the babysitter had appeared
as a witness for the defense during the main trial, several family
members, including Stacy, testified during the penalty phase, asking
the jury to spare Willingham’s life. When Stacy was on the stand,
Jackson grilled her about the “significance” of Willingham’s “very
large tattoo of a skull, encircled by some kind of a serpent.”
“It’s just a tattoo,” Stacy responded.
“He just likes skulls and snakes. Is that
what you’re saying?”
“No. He just had—he got a tattoo on him.”
The
prosecution cited such evidence in asserting that Willingham fit the
profile of a sociopath, and brought forth two medical experts to
confirm the theory. Neither had met Willingham. One of them was Tim
Gregory, a psychologist with a master’s degree in marriage and family
issues, who had previously gone goose hunting with Jackson, and had not
published any research in the field of sociopathic behavior. His
practice was devoted to family counselling.
At one point,
Jackson showed Gregory Exhibit No. 60—a photograph of an Iron Maiden
poster that had hung in Willingham’s house—and asked the psychologist
to interpret it. “This one is a picture of a skull, with a fist being
punched through the skull,” Gregory said; the image displayed
“violence” and “death.” Gregory looked at photographs of other music
posters owned by Willingham. “There’s a hooded skull, with wings and a
hatchet,” Gregory continued. “And all of these are in fire,
depicting—it reminds me of something like Hell. And there’s a picture—a
Led Zeppelin picture of a falling angel. . . . I see there’s an
association many times with cultive-type of activities. A focus on
death, dying. Many times individuals that have a lot of this type of
art have interest in satanic-type activities.”
The other
medical expert was James P. Grigson, a forensic psychiatrist. He
testified so often for the prosecution in capital-punishment cases that
he had become known as Dr. Death. (A Texas appellate judge once wrote
that when Grigson appeared on the stand the defendant might as well
“commence writing out his last will and testament.”) Grigson suggested
that Willingham was an “extremely severe sociopath,” and that “no pill”
or treatment could help him. Grigson had previously used nearly the
same words in helping to secure a death sentence against Randall Dale
Adams, who had been convicted of murdering a police officer, in 1977.
After Adams, who had no prior criminal record, spent a dozen years on
death row—and once came within seventy-two hours of being executed—new
evidence emerged that absolved him, and he was released. In 1995, three
years after Willingham’s trial, Grigson was expelled from the American
Psychiatric Association for violating ethics. The association stated
that Grigson had repeatedly arrived at a “psychiatric diagnosis without
first having examined the individuals in question, and for indicating,
while testifying in court as an expert witness, that he could predict
with 100-per-cent certainty that the individuals would engage in future
violent acts.”
After speaking to Stacy,
Gilbert
had one more person she wanted to interview: the jailhouse informant
Johnny Webb, who was incarcerated in Iowa Park, Texas. She wrote to
Webb, who said that she could see him, and they met in the prison
visiting room. A man in his late twenties, he had pallid skin and a
closely shaved head; his eyes were jumpy, and his entire body seemed to
tremble. A reporter who once met him described him to me as “nervous as
a cat around rocking chairs.” Webb had begun taking drugs when he was
nine years old, and had been convicted of, among other things, car
theft, selling marijuana, forgery, and robbery.
As Gilbert
chatted with him, she thought that he seemed paranoid. During
Willingham’s trial, Webb disclosed that he had been given a diagnosis
of “post-traumatic stress disorder” after he was sexually assaulted in
prison, in 1988, and that he often suffered from “mental impairment.”
Under cross-examination, Webb testified that he had no recollection of
a robbery that he had pleaded guilty to only months earlier.
Webb
repeated for her what he had said in court: he had passed by
Willingham’s cell, and as they spoke through a food slot Willingham
broke down and told him that he intentionally set the house on fire.
Gilbert was dubious. It was hard to believe that Willingham, who had
otherwise insisted on his innocence, had suddenly confessed to an
inmate he barely knew. The conversation had purportedly taken place by
a speaker system that allowed any of the guards to listen—an unlikely
spot for an inmate to reveal a secret. What’s more, Webb alleged that
Willingham had told him that Stacy had hurt one of the kids, and that
the fire was set to cover up the crime. The autopsies, however, had
revealed no bruises or signs of trauma on the children’s bodies.
Jailhouse
informants, many of whom are seeking reduced time or special
privileges, are notoriously unreliable. According to a 2004 study by
the Center on Wrongful Convictions, at Northwestern University Law
School, lying police and jailhouse informants are the leading cause of
wrongful convictions in capital cases in the United States. At the time
that Webb came forward against Willingham, he was facing charges of
robbery and forgery. During Willingham’s trial, another inmate planned
to testify that he had overheard Webb saying to another prisoner that
he was hoping to “get time cut,” but the testimony was ruled
inadmissible, because it was hearsay. Webb, who pleaded guilty to the
robbery and forgery charges, received a sentence of fifteen years.
Jackson, the prosecutor, told me that he generally considered Webb “an
unreliable kind of guy,” but added, “I saw no real motive for him to
make a statement like this if it wasn’t true. We didn’t cut him any
slack.” In 1997, five years after Willingham’s trial, Jackson urged the
Texas Board of Pardons and Paroles to grant Webb parole. “I asked them
to cut him loose early,” Jackson told me. The reason, Jackson said, was
that Webb had been targeted by the Aryan Brotherhood. The board granted
Webb parole, but within months of his release he was caught with
cocaine and returned to prison.
In March, 2000, several months
after Gilbert’s visit, Webb unexpectedly sent Jackson a Motion to
Recant Testimony, declaring, “Mr. Willingham is innocent of all
charges.” But Willingham’s lawyer was not informed of this development,
and soon afterward Webb, without explanation, recanted his recantation.
When I recently asked Webb, who was released from prison two years ago,
about the turnabout and why Willingham would have confessed to a
virtual stranger, he said that he knew only what “the dude told me.”
After I pressed him, he said, “It’s very possible I misunderstood what
he said.” Since the trial, Webb has been given an additional diagnosis,
bipolar disorder. “Being locked up in that little cell makes you kind
of crazy,” he said. “My memory is in bits and pieces. I was on a lot of
medication at the time. Everyone knew that.” He paused, then said, “The
statute of limitations has run out on perjury, hasn’t it?”
Aside
from the scientific evidence of arson, the case against Willingham did
not stand up to scrutiny. Jackson, the prosecutor, said of Webb’s
testimony, “You can take it or leave it.” Even the refrigerator’s
placement by the back door of the house turned out to be innocuous;
there were two refrigerators in the cramped kitchen, and one of them
was by the back door. Jimmie Hensley, the police detective, and Douglas
Fogg, the assistant fire chief, both of whom investigated the fire,
told me recently that they had never believed that the fridge was part
of the arson plot. “It didn’t have nothing to do with the fire,” Fogg
said.
After months of investigating the case,
Gilbert found that
her faith in the prosecution was shaken. As she told me, “What if Todd
really was innocent?”
III
In
the summer of 1660, an Englishman named William Harrison vanished on a
walk, near the village of Charingworth, in Gloucestershire. His
bloodstained hat was soon discovered on the side of a local road.
Police interrogated Harrison’s servant, John Perry, and eventually
Perry gave a statement that his mother and his brother had killed
Harrison for money. Perry, his mother, and his brother were hanged.
Two
years later, Harrison reappeared. He insisted, fancifully, that he had
been abducted by a band of criminals and sold into slavery. Whatever
happened, one thing was indisputable: he had not been murdered by the
Perrys.
The fear that an innocent person might be
executed has
long haunted jurors and lawyers and judges. During America’s Colonial
period, dozens of crimes were punishable by death, including horse
thievery, blasphemy, “man-stealing,” and highway robbery. After
independence, the number of crimes eligible for the death penalty was
gradually reduced, but doubts persisted over whether legal procedures
were sufficient to prevent an innocent person from being executed. In
1868, John Stuart Mill made one of the most eloquent defenses of
capital punishment, arguing that executing a murderer did not display a
wanton disregard for life but, rather, proof of its value. “We show, on
the contrary, most emphatically our regard for it by the adoption of a
rule that he who violates that right in another forfeits it for
himself,” he said. For Mill, there was one counterargument that carried
weight—“that if by an error of justice an innocent person is put to
death, the mistake can never be corrected.”
The modern legal
system, with its lengthy appeals process and clemency boards, was
widely assumed to protect the kind of “error of justice” that Mill
feared. In 2000, while George W. Bush was governor of Texas, he said,
“I know there are some in the country who don’t care for the death
penalty, but . . . we’ve adequately answered innocence or guilt.” His
top policy adviser on issues of criminal justice emphasized that there
is “super due process to make sure that no innocent defendants are
executed.”
In recent years, though, questions have
mounted over
whether the system is fail-safe. Since 1976, more than a hundred and
thirty people on death row have been exonerated. DNA testing, which was
developed in the eighties, saved seventeen of them, but the technique
can be used only in rare instances. Barry Scheck, a co-founder of the
Innocence Project, which has used DNA testing to exonerate prisoners,
estimates that about eighty per cent of felonies do not involve
biological evidence.
In 2000, after thirteen people on death row
in Illinois were exonerated, George Ryan, who was then governor of the
state, suspended the death penalty. Though he had been a longtime
advocate of capital punishment, he declared that he could no longer
support a system that has “come so close to the ultimate nightmare—the
state’s taking of innocent life.” Former Supreme Court Justice Sandra
Day O’Connor has said that the “execution of a legally and factually
innocent person would be a constitutionally intolerable event.”
Such
a case has become a kind of grisly Holy Grail among opponents of
capital punishment. In his 2002 book “The Death Penalty,” Stuart Banner
observes, “The prospect of killing an innocent person seemed to be the
one thing that could cause people to rethink their support for capital
punishment. Some who were not troubled by statistical arguments against
the death penalty—claims about deterrence or racial disparities—were
deeply troubled that such an extreme injustice might occur in an
individual case.” Opponents of the death penalty have pointed to
several questionable cases. In 1993, Ruben Cantu was executed in Texas
for fatally shooting a man during a robbery. Years later, a second
victim, who survived the shooting, told the Houston Chronicle
that he had been pressured by police to identify Cantu as the gunman,
even though he believed Cantu to be innocent. Sam Millsap, the district
attorney in the case, who had once supported capital punishment (“I’m
no wild-eyed, pointy-headed liberal”), said that he was disturbed by
the thought that he had made a mistake.
In 1995, Larry Griffin
was put to death in Missouri, for a drive-by shooting of a drug dealer.
The case rested largely on the eyewitness testimony of a career
criminal named Robert Fitzgerald, who had been an informant for
prosecutors before and was in the witness-protection program.
Fitzgerald maintained that he happened to be at the scene because his
car had broken down. After Griffin’s execution, a probe sponsored by
the N.A.A.C.P.’s Legal Defense and Educational Fund revealed that a man
who had been wounded during the incident insisted that Griffin was not
the shooter. Moreover, the first police officer at the scene disputed
that Fitzgerald had witnessed the crime.
These cases, however,
stopped short of offering irrefutable proof that a “legally and
factually innocent person” was executed. In 2005, a St. Louis
prosecutor, Jennifer Joyce, launched an investigation of the Griffin
case, upon being presented with what she called “compelling” evidence
of Griffin’s potential innocence. After two years of reviewing the
evidence, and interviewing a new eyewitness, Joyce said that she and
her team were convinced that the “right person was convicted.”
Supreme
Court Justice Antonin Scalia, in 2006, voted with a majority to uphold
the death penalty in a Kansas case. In his opinion, Scalia declared
that, in the modern judicial system, there has not been “a single
case—not one—in which it is clear that a person was executed for a
crime he did not commit. If such an event had occurred in recent years,
we would not have to hunt for it; the innocent’s name would be shouted
from the rooftops.”
“My problems are simple,”
Willingham wrote Gilbert in September, 1999. “Try to keep them from
killing me at all costs. End of story.”
During his first years
on death row, Willingham had pleaded with his lawyer, David Martin, to
rescue him. “You can’t imagine what it’s like to be here, with people I
have no business even being around,” he wrote.
For a while,
Willingham shared a cell with Ricky Lee Green, a serial killer, who
castrated and fatally stabbed his victims, including a sixteen-year-old
boy. (Green was executed in 1997.) Another of Willingham’s cellmates,
who had an I.Q. below seventy and the emotional development of an
eight-year-old, was raped by an inmate. “You remember me telling you I
had a new celly?” Willingham wrote in a letter to his parents. “The
little retarded boy. . . . There was this guy here on the wing who is a
shit sorry coward (who is the same one I got into it with a little over
a month ago). Well, he raped [my cellmate] in the 3 row shower week
before last.” Willingham said that he couldn’t believe that someone
would “rape a boy who cannot even defend himself. Pretty damn low.”
Because
Willingham was known as a “baby killer,” he was a target of attacks.
“Prison is a rough place, and with a case like mine they never give you
the benefit of a doubt,” he wrote his parents. After he tried to fight
one prisoner who threatened him, Willingham told a friend that if he
hadn’t stood up for himself several inmates would have “beaten me up or
raped or”—his thought trailed off.
Over the years, Willingham’s
letters home became increasingly despairing. “This is a hard place, and
it makes a person hard inside,” he wrote. “I told myself that was one
thing I did not want and that was for this place to make me bitter, but
it is hard.” He went on, “They have [executed] at least one person
every month I have been here. It is senseless and brutal. . . . You
see, we are not living in here, we are only existing.” In 1996, he
wrote, “I just been trying to figure out why after having a wife and 3
beautiful children that I loved my life has to end like this. And
sometimes it just seems like it is not worth it all. . . . In the 3 1/2
years I been here I have never felt that my life was as worthless and
desolate as it is now.” Since the fire, he wrote, he had the sense that
his life was slowly being erased. He obsessively looked at photographs
of his children and Stacy, which he stored in his cell. “So long ago,
so far away,” he wrote in a poem. “Was everything truly there?”
Inmates
on death row are housed in a prison within a prison, where there are no
attempts at rehabilitation, and no educational or training programs. In
1999, after seven prisoners tried to escape from Huntsville, Willingham
and four hundred and fifty-nine other inmates on death row were moved
to a more secure facility, in Livingston, Texas. Willingham was held in
isolation in a sixty-square-foot cell, twenty-three hours a day. He
tried to distract himself by drawing—“amateur stuff,” as he put it—and
writing poems. In a poem about his children, he wrote, “There is
nothing more beautiful than you on this earth.” When Gilbert once
suggested some possible revisions to his poems, he explained that he
wrote them simply as expressions, however crude, of his feelings. “So
to me to cut them up and try to improve on them just for
creative-writing purposes would be to destroy what I was doing to start
with,” he said.
Despite his efforts to occupy his thoughts,
he
wrote in his diary that his mind “deteriorates each passing day.” He
stopped working out and gained weight. He questioned his faith: “No God
who cared about his creation would abandon the innocent.” He seemed not
to care if another inmate attacked him. “A person who is already dead
inside does not fear” death, he wrote.
One by one, the people
he knew in prison were escorted into the execution chamber. There was
Clifton Russell, Jr., who, at the age of eighteen, stabbed and beat a
man to death, and who said, in his last statement, “I thank my Father,
God in Heaven, for the grace he has granted me—I am ready.” There was
Jeffery Dean Motley, who kidnapped and fatally shot a woman, and who
declared, in his final words, “I love you, Mom. Goodbye.” And there was
John Fearance, who murdered his neighbor, and who turned to God in his
last moments and said, “I hope He will forgive me for what I done.”
Willingham
had grown close to some of his prison mates, even though he knew that
they were guilty of brutal crimes. In March, 2000, Willingham’s friend
Ponchai Wilkerson—a twenty-eight-year-old who had shot and killed a
clerk during a jewelry heist—was executed. Afterward, Willingham wrote
in his diary that he felt “an emptiness that has not been touched since
my children were taken from me.” A year later, another friend who was
about to be executed—“one of the few real people I have met here not
caught up in the bravado of prison”—asked Willingham to make him a
final drawing. “Man, I never thought drawing a simple Rose could be so
emotionally hard,” Willingham wrote. “The hard part is knowing that
this will be the last thing I can do for him.”
Another inmate,
Ernest Ray Willis, had a case that was freakishly similar to
Willingham’s. In 1987, Willis had been convicted of setting a fire, in
West Texas, that killed two women. Willis told investigators that he
had been sleeping on a friend’s living-room couch and woke up to a
house full of smoke. He said that he tried to rouse one of the women,
who was sleeping in another room, but the flames and smoke drove him
back, and he ran out the front door before the house exploded with
flames. Witnesses maintained that Willis had acted suspiciously; he
moved his car out of the yard, and didn’t show “any emotion,” as one
volunteer firefighter put it. Authorities also wondered how Willis
could have escaped the house without burning his bare feet. Fire
investigators found pour patterns, puddle configurations, and other
signs of arson. The authorities could discern no motive for the crime,
but concluded that Willis, who had no previous record of violence, was
a sociopath—a “demon,” as the prosecutor put it. Willis was charged
with capital murder and sentenced to death.
Willis had
eventually obtained what Willingham called, enviously, a “bad-ass
lawyer.” James Blank, a noted patent attorney in New York, was assigned
Willis’s case as part of his firm’s pro-bono work. Convinced that
Willis was innocent, Blank devoted more than a dozen years to the case,
and his firm spent millions, on fire consultants, private
investigators, forensic experts, and the like. Willingham, meanwhile,
relied on David Martin, his court-appointed lawyer, and one of Martin’s
colleagues to handle his appeals. Willingham often told his parents,
“You don’t know what it’s like to have lawyers who won’t even believe
you’re innocent.” Like many inmates on death row, Willingham eventually
filed a claim of inadequate legal representation. (When I recently
asked Martin about his representation of Willingham, he said, “There
were no grounds for reversal, and the verdict was absolutely the right
one.” He said of the case, “Shit, it’s incredible that anyone’s even
thinking about it.”)
Willingham tried to study the law himself,
reading books such as “Tact in Court, or How Lawyers Win: Containing
Sketches of Cases Won by Skill, Wit, Art, Tact, Courage and Eloquence.”
Still, he confessed to a friend, “The law is so complicated it is hard
for me to understand.” In 1996, he obtained a new court-appointed
lawyer, Walter Reaves, who told me that he was appalled by the quality
of Willingham’s defense at trial and on appeal. Reaves prepared for him
a state writ of habeas corpus, known as a Great Writ. In the byzantine
appeals process of death-penalty cases, which frequently takes more
than ten years, the writ is the most critical stage: a prisoner can
introduce new evidence detailing such things as perjured testimony,
unreliable medical experts, and bogus scientific findings. Yet most
indigent inmates, like Willingham, who constitute the bulk of those on
death row, lack the resources to track down new witnesses or dig up
fresh evidence. They must depend on court-appointed lawyers, many of
whom are “unqualified, irresponsible, or overburdened,” as a study by
the Texas Defender Service, a nonprofit organization, put it. In 2000,
a Dallas Morning News investigation revealed that roughly a
quarter of the inmates condemned to death in Texas were represented by
court-appointed attorneys who had, at some point in their careers, been
“reprimanded, placed on probation, suspended or banned from practicing
law by the State Bar.” Although Reaves was more competent, he had few
resources to reinvestigate the case, and his writ introduced no new
exculpatory evidence: nothing further about Webb, or the reliability of
the eyewitness testimony, or the credibility of the medical experts. It
focussed primarily on procedural questions, such as whether the trial
court erred in its instructions to the jury.
The Texas Court of
Criminal Appeals was known for upholding convictions even when
overwhelming exculpatory evidence came to light. In 1997, DNA testing
proved that sperm collected from a rape victim did not match Roy
Criner, who had been sentenced to ninety-nine years for the crime. Two
lower courts recommended that the verdict be overturned, but the Court
of Criminal Appeals upheld it, arguing that Criner might have worn a
condom or might not have ejaculated. Sharon Keller, who is now the
presiding judge on the court, stated in a majority opinion, “The new
evidence does not establish innocence.” In 2000, George W. Bush
pardoned Criner. (Keller was recently charged with judicial misconduct,
for refusing to keep open past five o’clock a clerk’s office in order
to allow a last-minute petition from a man who was executed later that
night.)
On October 31, 1997, the Court of Criminal
Appeals denied
Willingham’s writ. After Willingham filed another writ of habeas
corpus, this time in federal court, he was granted a temporary stay. In
a poem, Willingham wrote, “One more chance, one more strike / Another
bullet dodged, another date escaped.”
Willingham was entering his
final stage of appeals. As his anxieties mounted, he increasingly
relied upon Gilbert to investigate his case and for emotional support.
“She may never know what a change she brought into my life,” he wrote
in his diary. “For the first time in many years she gave me a purpose,
something to look forward to.”
As their friendship deepened, he
asked her to promise him that she would never disappear without
explanation. “I already have that in my life,” he told her.
Together,
they pored over clues and testimony. Gilbert says that she would send
Reaves leads to follow up, but although he was sympathetic, nothing
seemed to come of them. In 2002, a federal district court of appeals
denied Willingham’s writ without even a hearing. “Now I start the last
leg of my journey,” Willingham wrote to Gilbert. “Got to get things in
order.”
He appealed to the U.S. Supreme Court, but
in December,
2003, he was notified that it had declined to hear his case. He soon
received a court order announcing that “the Director of the Department
of Criminal Justice at Huntsville, Texas, acting by and through the
executioner designated by said Director . . . is hereby DIRECTED and COMMANDED,
at some hour after 6:00 p.m. on the 17th day of February, 2004, at the
Department of Criminal Justice in Huntsville, Texas, to carry out this
sentence of death by intravenous injection of a substance or substances
in a lethal quantity sufficient to cause the death of said Cameron Todd
Willingham.”
Willingham wrote a letter to his parents.
“Are you
sitting down?” he asked, before breaking the news. “I love you both so
much,” he said.
His only remaining recourse was to appeal to
the governor of Texas, Rick Perry, a Republican, for clemency. The
process, considered the last gatekeeper to the executioner, has been
called by the U.S. Supreme Court “the ‘fail safe’ in our criminal
justice system.”
IV
One
day in January, 2004, Dr. Gerald Hurst, an acclaimed scientist and fire
investigator, received a file describing all the evidence of arson
gathered in Willingham’s case. Gilbert had come across Hurst’s name
and, along with one of Willingham’s relatives, had contacted him,
seeking his help. After their pleas, Hurst had agreed to look at the
case pro bono, and Reaves, Willingham’s lawyer, had sent him the
relevant documents, in the hope that there were grounds for clemency.
Hurst
opened the file in the basement of his house in Austin, which served as
a laboratory and an office, and was cluttered with microscopes and
diagrams of half-finished experiments. Hurst was nearly six and half
feet tall, though his stooped shoulders made him seem considerably
shorter, and he had a gaunt face that was partly shrouded by long gray
hair. He was wearing his customary outfit: black shoes, black socks, a
black T-shirt, and loose-fitting black pants supported by black
suspenders. In his mouth was a wad of chewing tobacco.
A child
prodigy who was raised by a sharecropper during the Great Depression,
Hurst used to prowl junk yards, collecting magnets and copper wires in
order to build radios and other contraptions. In the early sixties, he
received a Ph.D. in chemistry from Cambridge University, where he
started to experiment with fluorine and other explosive chemicals, and
once detonated his lab. Later, he worked as the chief scientist on
secret weapons programs for several American companies, designing
rockets and deadly fire bombs—or what he calls “god-awful things.” He
helped patent what has been described, with only slight exaggeration,
as “the world’s most powerful nonnuclear explosive”: an Astrolite bomb.
He experimented with toxins so lethal that a fraction of a drop would
rot human flesh, and in his laboratory he often had to wear a
pressurized moon suit; despite such precautions, exposure to chemicals
likely caused his liver to fail, and in 1994 he required a transplant.
Working on what he calls “the dark side of arson,” he retrofitted
napalm bombs with Astrolite, and developed ways for covert operatives
in Vietnam to create bombs from local materials, such as chicken manure
and sugar. He also perfected a method for making an exploding T-shirt
by nitrating its fibres.
His conscience eventually began pricking
him. “One day, you wonder, What the hell am I doing?” he recalls. He
left the defense industry, and went on to invent the Mylar balloon, an
improved version of Liquid Paper, and Kinepak, a kind of explosive that
reduces the risk of accidental detonation. Because of his extraordinary
knowledge of fire and explosives, companies in civil litigation
frequently sought his help in determining the cause of a blaze. By the
nineties, Hurst had begun devoting significant time to criminal-arson
cases, and, as he was exposed to the methods of local and state fire
investigators, he was shocked by what he saw.
Many arson
investigators, it turned out, had only a high-school education. In most
states, in order to be certified, investigators had to take a
forty-hour course on fire investigation, and pass a written exam.
Often, the bulk of an investigator’s training came on the job, learning
from “old-timers” in the field, who passed down a body of wisdom about
the telltale signs of arson, even though a study in 1977 warned that
there was nothing in “the scientific literature to substantiate their
validity.”
In 1992, the National Fire Protection
Association,
which promotes fire prevention and safety, published its first
scientifically based guidelines to arson investigation. Still, many
arson investigators believed that what they did was more an art than a
science—a blend of experience and intuition. In 1997, the International
Association of Arson Investigators filed a legal brief arguing that
arson sleuths should not be bound by a 1993 Supreme Court decision
requiring experts who testified at trials to adhere to the scientific
method. What arson sleuths did, the brief claimed, was “less
scientific.” By 2000, after the courts had rejected such claims, arson
investigators increasingly recognized the scientific method, but there
remained great variance in the field, with many practitioners still
relying on the unverified techniques that had been used for
generations. “People investigated fire largely with a flat-earth
approach,” Hurst told me. “It looks like arson—therefore, it’s arson.”
He went on, “My view is you have to have a scientific basis. Otherwise,
it’s no different than witch-hunting.”
In 1998, Hurst
investigated the case of a woman from North Carolina named Terri
Hinson, who was charged with setting a fire that killed her
seventeen-month-old son, and faced the death penalty. Hurst ran a
series of experiments re-creating the conditions of the fire, which
suggested that it had not been arson, as the investigators had claimed;
rather, it had started accidentally, from a faulty electrical wire in
the attic. Because of this research, Hinson was freed. John Lentini, a
fire expert and the author of a leading scientific textbook on arson,
describes Hurst as “brilliant.” A Texas prosecutor once told the
Chicago Tribune, of Hurst, “If he says it was an arson fire,
then it was. If he says it wasn’t, then it wasn’t.”
Hurst’s
patents yielded considerable royalties, and he could afford to work pro
bono on an arson case for months, even years. But he received the files
on Willingham’s case only a few weeks before Willingham was scheduled
to be executed. As Hurst looked through the case records, a statement
by Manuel Vasquez, the state deputy fire marshal, jumped out at him.
Vasquez had testified that, of the roughly twelve hundred to fifteen
hundred fires he had investigated, “most all of them” were arson. This
was an oddly high estimate; the Texas State Fire Marshals Office
typically found arson in only fifty per cent of its cases.
Hurst
was also struck by Vasquez’s claim that the Willingham blaze had
“burned fast and hot” because of a liquid accelerant. The notion that a
flammable or combustible liquid caused flames to reach higher
temperatures had been repeated in court by arson sleuths for decades.
Yet the theory was nonsense: experiments have proved that wood and
gasoline-fuelled fires burn at essentially the same temperature.
Vasquez
and Fogg had cited as proof of arson the fact that the front door’s
aluminum threshold had melted. “The only thing that can cause that to
react is an accelerant,” Vasquez said. Hurst was incredulous. A
natural-wood fire can reach temperatures as high as two thousand
degrees Fahrenheit—far hotter than the melting point for aluminum
alloys, which ranges from a thousand to twelve hundred degrees. And,
like many other investigators, Vasquez and Fogg mistakenly assumed that
wood charring beneath the aluminum threshold was evidence that, as
Vasquez put it, “a liquid accelerant flowed underneath and burned.”
Hurst had conducted myriad experiments showing that such charring was
caused simply by the aluminum conducting so much heat. In fact, when
liquid accelerant is poured under a threshold a fire will extinguish,
because of a lack of oxygen. (Other scientists had reached the same
conclusion.) “Liquid accelerants can no more burn under an aluminum
threshold than can grease burn in a skillet even with a loose-fitting
lid,” Hurst declared in his report on the Willingham case.
Hurst
then examined Fogg and Vasquez’s claim that the “brown stains” on
Willingham’s front porch were evidence of “liquid accelerant,” which
had not had time to soak into the concrete. Hurst had previously
performed a test in his garage, in which he poured charcoal-lighter
fluid on the concrete floor, and lit it. When the fire went out, there
were no brown stains, only smudges of soot. Hurst had run the same
experiment many times, with different kinds of liquid accelerants, and
the result was always the same. Brown stains were common in fires; they
were usually composed of rust or gunk from charred debris that had
mixed with water from fire hoses.
Another crucial piece of
evidence implicating Willingham was the “crazed glass” that Vasquez had
attributed to the rapid heating from a fire fuelled with liquid
accelerant. Yet, in November of 1991, a team of fire investigators had
inspected fifty houses in the hills of Oakland, California, which had
been ravaged by brush fires. In a dozen houses, the investigators
discovered crazed glass, even though a liquid accelerant had not been
used. Most of these houses were on the outskirts of the blaze, where
firefighters had shot streams of water; as the investigators later
wrote in a published study, they theorized that the fracturing had been
induced by rapid cooling, rather than by sudden heating—thermal shock
had caused the glass to contract so quickly that it settled
disjointedly. The investigators then tested this hypothesis in a
laboratory. When they heated glass, nothing happened. But each time
they applied water to the heated glass the intricate patterns appeared.
Hurst had seen the same phenomenon when he had blowtorched and cooled
glass during his research at Cambridge. In his report, Hurst wrote that
Vasquez and Fogg’s notion of crazed glass was no more than an “old
wives’ tale.”
Hurst then confronted some of the most
devastating
arson evidence against Willingham: the burn trailer, the pour patterns
and puddle configurations, the V-shape and other burn marks indicating
that the fire had multiple points of origin, the burning underneath the
children’s beds. There was also the positive test for mineral spirits
by the front door, and Willingham’s seemingly implausible story that he
had run out of the house without burning his bare feet.
As
Hurst read through more of the files, he noticed that Willingham and
his neighbors had described the windows in the front of the house
suddenly exploding and flames roaring forth. It was then that Hurst
thought of the legendary Lime Street Fire, one of the most pivotal in
the history of arson investigation.
On the
evening of October 15, 1990, a thirty-five-year-old man named Gerald
Wayne Lewis was found standing in front of his house on Lime Street, in
Jacksonville, Florida, holding his three-year-old son. His two-story
wood-frame home was engulfed in flames. By the time the fire had been
extinguished, six people were dead, including Lewis’s wife. Lewis said
that he had rescued his son but was unable to get to the others, who
were upstairs.
When fire investigators examined the scene,
they
found the classic signs of arson: low burns along the walls and floors,
pour patterns and puddle configurations, and a burn trailer running
from the living room into the hallway. Lewis claimed that the fire had
started accidentally, on a couch in the living room—his son had been
playing with matches. But a V-shaped pattern by one of the doors
suggested that the fire had originated elsewhere. Some witnesses told
authorities that Lewis seemed too calm during the fire and had never
tried to get help. According to the Los Angeles Times, Lewis
had previously been arrested for abusing his wife, who had taken out a
restraining order against him. After a chemist said that he had
detected the presence of gasoline on Lewis’s clothing and shoes, a
report by the sheriff’s office concluded, “The fire was started as a
result of a petroleum product being poured on the front porch, foyer,
living room, stairwell and second floor bedroom.” Lewis was arrested
and charged with six counts of murder. He faced the death penalty.
Subsequent
tests, however, revealed that the laboratory identification of gasoline
was wrong. Moreover, a local news television camera had captured Lewis
in a clearly agitated state at the scene of the fire, and investigators
discovered that at one point he had jumped in front of a moving car,
asking the driver to call the Fire Department.
Seeking to
bolster their theory of the crime, prosecutors turned to John Lentini,
the fire expert, and John DeHaan, another leading investigator and
textbook author. Despite some of the weaknesses of the case, Lentini
told me that, given the classic burn patterns and puddle configurations
in the house, he was sure that Lewis had set the fire: “I was prepared
to testify and send this guy to Old Sparky”—the electric chair.
To
discover the truth, the investigators, with the backing of the
prosecution, decided to conduct an elaborate experiment and re-create
the fire scene. Local officials gave the investigators permission to
use a condemned house next to Lewis’s home, which was about to be torn
down. The two houses were virtually identical, and the investigators
refurbished the condemned one with the same kind of carpeting,
curtains, and furniture that had been in Lewis’s home. The scientists
also wired the building with heat and gas sensors that could withstand
fire. The cost of the experiment came to twenty thousand dollars.
Without using liquid accelerant, Lentini and DeHaan set the couch in
the living room on fire, expecting that the experiment would
demonstrate that Lewis’s version of events was implausible.
The
investigators watched as the fire quickly consumed the couch, sending
upward a plume of smoke that hit the ceiling and spread outward,
creating a thick layer of hot gases overhead—an efficient radiator of
heat. Within three minutes, this cloud, absorbing more gases from the
fire below, was banking down the walls and filling the living room. As
the cloud approached the floor, its temperature rose, in some areas, to
more than eleven hundred degrees Fahrenheit. Suddenly, the entire room
exploded in flames, as the radiant heat ignited every piece of
furniture, every curtain, every possible fuel source, even the
carpeting. The windows shattered.
The fire had reached what is
called “flashover”—the point at which radiant heat causes a fire in a
room to become a room on fire. Arson investigators knew about the
concept of flashover, but it was widely believed to take much longer to
occur, especially without a liquid accelerant. From a single fuel
source—a couch—the room had reached flashover in four and a half
minutes.
Because all the furniture in the living room
had
ignited, the blaze went from a fuel-controlled fire to a
ventilation-controlled fire—or what scientists call “post-flashover.”
During post-flashover, the path of the fire depends on new sources of
oxygen, from an open door or window. One of the fire investigators, who
had been standing by an open door in the living room, escaped moments
before the oxygen-starved fire roared out of the room into the
hallway—a fireball that caused the corridor to go quickly into
flashover as well, propelling the fire out the front door and onto the
porch.
After the fire was extinguished, the
investigators
inspected the hallway and living room. On the floor were irregularly
shaped burn patterns that perfectly resembled pour patterns and puddle
configurations. It turned out that these classic signs of arson can
also appear on their own, after flashover. With the naked eye, it is
impossible to distinguish between the pour patterns and puddle
configurations caused by an accelerant and those caused naturally by
post-flashover. The only reliable way to tell the difference is to take
samples from the burn patterns and test them in a laboratory for the
presence of flammable or combustible liquids.
During the Lime
Street experiment, other things happened that were supposed to occur
only in a fire fuelled by liquid accelerant: charring along the base of
the walls and doorways, and burning under furniture. There was also a
V-shaped pattern by the living-room doorway, far from where the fire
had started on the couch. In a small fire, a V-shaped burn mark may
pinpoint where a fire began, but during post-flashover these patterns
can occur repeatedly, when various objects ignite.
One of the
investigators muttered that they had just helped prove the defense’s
case. Given the reasonable doubt raised by the experiment, the charges
against Lewis were soon dropped. The Lime Street experiment had
demolished prevailing notions about fire behavior. Subsequent tests by
scientists showed that, during post-flashover, burning under beds and
furniture was common, entire doors were consumed, and aluminum
thresholds melted.
John Lentini says of the Lime Street Fire,
“This was my epiphany. I almost sent a man to die based on theories
that were a load of crap.”
Hurst next examined
a floor plan of Willingham’s house that Vasquez had drawn, which
delineated all the purported pour patterns and puddle configurations.
Because the windows had blown out of the children’s room, Hurst knew
that the fire had reached flashover. With his finger, Hurst traced
along Vasquez’s diagram the burn trailer that had gone from the
children’s room, turned right in the hallway, and headed out the front
door. John Jackson, the prosecutor, had told me that the path was so
“bizarre” that it had to have been caused by a liquid accelerant. But
Hurst concluded that it was a natural product of the dynamics of fire
during post-flashover. Willingham had fled out the front door, and the
fire simply followed the ventilation path, toward the opening.
Similarly, when Willingham had broken the windows in the children’s
room, flames had shot outward.
Hurst recalled that Vasquez and
Fogg had considered it impossible for Willingham to have run down the
burning hallway without scorching his bare feet. But if the pour
patterns and puddle configurations were a result of a flashover, Hurst
reasoned, then they were consonant with Willingham’s explanation of
events. When Willingham exited his bedroom, the hallway was not yet on
fire; the flames were contained within the children’s bedroom, where,
along the ceiling, he saw the “bright lights.” Just as the investigator
safely stood by the door in the Lime Street experiment seconds before
flashover, Willingham could have stood close to the children’s room
without being harmed. (Prior to the Lime Street case, fire
investigators had generally assumed that carbon monoxide diffuses
quickly through a house during a fire. In fact, up until flashover,
levels of carbon monoxide can be remarkably low beneath and outside the
thermal cloud.) By the time the Corsicana fire achieved flashover,
Willingham had already fled outside and was in the front yard.
Vasquez
had made a videotape of the fire scene, and Hurst looked at the footage
of the burn trailer. Even after repeated viewings, he could not detect
three points of origin, as Vasquez had. (Fogg recently told me that he
also saw a continuous trailer and disagreed with Vasquez, but added
that nobody from the prosecution or the defense ever asked him on the
stand about his opinion on the subject.)
After Hurst had reviewed
Fogg and Vasquez’s list of more than twenty arson indicators, he
believed that only one had any potential validity: the positive test
for mineral spirits by the threshold of the front door. But why had the
fire investigators obtained a positive reading only in that location?
According to Fogg and Vasquez’s theory of the crime, Willingham had
poured accelerant throughout the children’s bedroom and down the
hallway. Officials had tested extensively in these areas—including
where all the pour patterns and puddle configurations were—and turned
up nothing. Jackson told me that he “never did understand why they
weren’t able to recover” positive tests in these parts.
Hurst
found it hard to imagine Willingham pouring accelerant on the front
porch, where neighbors could have seen him. Scanning the files for
clues, Hurst noticed a photograph of the porch taken before the fire,
which had been entered into evidence. Sitting on the tiny porch was a
charcoal grill. The porch was where the family barbecued. Court
testimony from witnesses confirmed that there had been a grill, along
with a container of lighter fluid, and that both had burned when the
fire roared onto the porch during post-flashover. By the time Vasquez
inspected the house, the grill had been removed from the porch, during
cleanup. Though he cited the container of lighter fluid in his report,
he made no mention of the grill. At the trial, he insisted that he had
never been told of the grill’s earlier placement. Other authorities
were aware of the grill but did not see its relevance. Hurst, however,
was convinced that he had solved the mystery: when firefighters had
blasted the porch with water, they had likely spread charcoal-lighter
fluid from the melted container.
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.
V
“I
am a realist and I will not live a fantasy,” Willingham once told
Gilbert about the prospect of proving his innocence. But in February,
2004, he began to have hope. Hurst’s findings had helped to exonerate
more than ten people. Hurst even reviewed the scientific evidence
against Willingham’s friend Ernest Willis, who had been on death row
for the strikingly similar arson charge. Hurst says, “It was like I was
looking at the same case. Just change the names.” In his report on the
Willis case, Hurst concluded that not “a single item of physical
evidence . . . supports a finding of arson.” A second fire expert hired
by Ori White, the new district attorney in Willis’s district,
concurred. After seventeen years on death row, Willis was set free. “I
don’t turn killers loose,” White said at the time. “If Willis was
guilty, I’d be retrying him right now. And I’d use Hurst as my witness.
He’s a brilliant scientist.” White noted how close the system had come
to murdering an innocent man. “He did not get executed, and I thank God
for that,” he said.
On February 13th, four days before
Willingham
was scheduled to be executed, he got a call from Reaves, his attorney.
Reaves told him that the fifteen members of the Board of Pardons and
Paroles, which reviews an application for clemency and had been sent
Hurst’s report, had made their decision.
“What is it?” Willingham asked.
“I’m sorry,” Reaves said. “They denied your
petition.”
The
vote was unanimous. Reaves could not offer an explanation: the board
deliberates in secret, and its members are not bound by any specific
criteria. The board members did not even have to review Willingham’s
materials, and usually don’t debate a case in person; rather, they cast
their votes by fax—a process that has become known as “death by fax.”
Between 1976 and 2004, when Willingham filed his petition, the State of
Texas had approved only one application for clemency from a prisoner on
death row. A Texas appellate judge has called the clemency system “a
legal fiction.” Reaves said of the board members, “They never asked me
to attend a hearing or answer any questions.”
The Innocence
Project obtained, through the Freedom of Information Act, all the
records from the governor’s office and the board pertaining to Hurst’s
report. “The documents show that they received the report, but neither
office has any record of anyone acknowledging it, taking note of its
significance, responding to it, or calling any attention to it within
the government,” Barry Scheck said. “The only reasonable conclusion is
that the governor’s office and the Board of Pardons and Paroles ignored
scientific evidence.”
LaFayette Collins, who was a member of
the board at the time, told me of the process, “You don’t vote guilt or
innocence. You don’t retry the trial. You just make sure everything is
in order and there are no glaring errors.” He noted that although the
rules allowed for a hearing to consider important new evidence, “in my
time there had never been one called.” When I asked him why Hurst’s
report didn’t constitute evidence of “glaring errors,” he said, “We get
all kinds of reports, but we don’t have the mechanisms to vet them.”
Alvin Shaw, another board member at the time, said that the case didn’t
“ring a bell,” adding, angrily, “Why would I want to talk about it?”
Hurst calls the board’s actions “unconscionable.”
Though Reaves
told Willingham that there was still a chance that Governor Perry might
grant a thirty-day stay, Willingham began to prepare his last will and
testament. He had earlier written Stacy a letter apologizing for not
being a better husband and thanking her for everything she had given
him, especially their three daughters. “I still know Amber’s voice, her
smile, her cool Dude saying and how she said: I wanna hold you! Still
feel the touch of Karmon and Kameron’s hands on my face.” He said that
he hoped that “some day, somehow the truth will be known and my name
cleared.”
He asked Stacy if his tombstone could be
erected next
to their children’s graves. Stacy, who had for so long expressed belief
in Willingham’s innocence, had recently taken her first look at the
original court records and arson findings. Unaware of Hurst’s report,
she had determined that Willingham was guilty. She denied him his wish,
later telling a reporter, “He took my kids away from me.”
Gilbert
felt as if she had failed Willingham. Even before his pleas for
clemency were denied, she told him that all she could give him was her
friendship. He told her that it was enough “to be a part of your life
in some small way so that in my passing I can know I was at last able
to have felt the heart of another who might remember me when I’m gone.”
He added, “There is nothing to forgive you for.” He told her that he
would need her to be present at his execution, to help him cope with
“my fears, thoughts, and feelings.”
On February 17th, the day
he was set to die, Willingham’s parents and several relatives gathered
in the prison visiting room. Plexiglas still separated Willingham from
them. “I wish I could touch and hold both of you,” Willingham had
written to them earlier. “I always hugged Mom but I never hugged Pop
much.”
As Willingham looked at the group, he kept
asking where
Gilbert was. Gilbert had recently been driving home from a store when
another car ran a red light and smashed into her. Willingham used to
tell her to stay in her kitchen for a day, without leaving, to
comprehend what it was like to be confined in prison, but she had
always found an excuse not to do it. Now she was paralyzed from the
neck down.
While she was in an intensive-care unit, she
had
tried to get a message to Willingham, but apparently failed. Gilbert’s
daughter later read her a letter that Willingham had sent her, telling
her how much he had grown to love her. He had written a poem: “Do you
want to see beauty—like you have never seen? / Then close your eyes,
and open your mind, and come along with me.”
Gilbert, who spent
years in physical rehabilitation, gradually regaining motion in her
arms and upper body, says, “All that time, I thought I was saving
Willingham, and I realized then that he was saving me, giving me the
strength to get through this. I know I will one day walk again, and I
know it is because Willingham showed me the kind of courage it takes to
survive.”
Willingham had requested a final meal, and
at 4 P.M.
on the seventeenth he was served it: three barbecued pork ribs, two
orders of onion rings, fried okra, three beef enchiladas with cheese,
and two slices of lemon cream pie. He received word that Governor Perry
had refused to grant him a stay. (A spokesperson for Perry says, “The
Governor made his decision based on the facts of the case.”)
Willingham’s mother and father began to cry. “Don’t be sad, Momma,”
Willingham said. “In fifty-five minutes, I’m a free man. I’m going home
to see my kids.” Earlier, he had confessed to his parents that there
was one thing about the day of the fire he had lied about. He said that
he had never actually crawled into the children’s room. “I just didn’t
want people to think I was a coward,” he said. Hurst told me, “People
who have never been in a fire don’t understand why those who survive
often can’t rescue the victims. They have no concept of what a fire is
like.”
The warden told Willingham that it was time.
Willingham,
refusing to assist the process, lay down; he was carried into a chamber
eight feet wide and ten feet long. The walls were painted green, and in
the center of the room, where an electric chair used to be, was a
sheeted gurney. Several guards strapped Willingham down with leather
belts, snapping buckles across his arms and legs and chest. A medical
team then inserted intravenous tubes into his arms. Each official had a
separate role in the process, so that no one person felt responsible
for taking a life.
Willingham had asked that his parents and
family not be present in the gallery during this process, but as he
looked out he could see Stacy watching. The warden pushed a remote
control, and sodium thiopental, a barbiturate, was pumped into
Willingham’s body. Then came a second drug, pancuronium bromide, which
paralyzes the diaphragm, making it impossible to breathe. Finally, a
third drug, potassium chloride, filled his veins, until his heart
stopped, at 6:20 P.M. On his death certificate, the cause was
listed as “Homicide.”
After
his death, his parents were allowed to touch his face for the first
time in more than a decade. Later, at Willingham’s request, they
cremated his body and secretly spread some of his ashes over his
children’s graves. He had told his parents, “Please don’t ever stop
fighting to vindicate me.”
In December, 2004, questions about the
scientific evidence in the Willingham case began to surface. Maurice
Possley and Steve Mills, of the Chicago Tribune, had published
an investigative series on flaws in forensic science; upon learning of
Hurst’s report, Possley and Mills asked three fire experts, including
John Lentini, to examine the original investigation. The experts
concurred with Hurst’s report. Nearly two years later, the Innocence
Project commissioned Lentini and three other top fire investigators to
conduct an independent review of the arson evidence in the Willingham
case. The panel concluded that “each and every one” of the indicators
of arson had been “scientifically proven to be invalid.”
In
2005, Texas established a government commission to investigate
allegations of error and misconduct by forensic scientists. The first
cases that are being reviewed by the commission are those of Willingham
and Willis. 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
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.”
Just
before Willingham received the lethal injection, he was asked if he had
any last words. He said, “The only statement I want to make is that I
am an innocent man convicted of a crime I did not commit. I have been
persecuted for twelve years for something I did not do. From God’s dust
I came and to dust I will return, so the Earth shall become my throne.”
♦
http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann?currentPage=all
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