“An Absolute Monster”

— by Rhoda Averbach, October 14, 2010
     (updates at the bottom)

“An Absolute Monster” — Texas Governor Rick Perry

Photo by Back to Basics

Governor Perry has presided over 224 executions – the most of any US governor, ever.

On October 14, 2010, a Texas judge held a hearing on whether to convene a Court of Inquiry to investigate flawed arson evidence used to execute a man for killing his three young children in a house fire. Judge Charlie Baird ruled in favor of the hearing after nine independent reviews of the forensic evidence found the fire was not caused by arson. If exonerated, Cameron Todd Willingham will be “the first person officially declared innocent after being executed in the modern era of US capital punishment.”
Executive clemency is a process that former Supreme Court Chief Justice Rehnquist called “the failsafe in our criminal system.” Clemency, however, “presupposes a degree of integrity and political courage that is not readily apparent among the governors of most death-penalty states.” – Alan Berlow, The Wrong Man

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.” – Antonin Scalia, 2006

Richard Dieter, Director of the Death Penalty Information Center, calls this a potentially “watershed case.” Though tragic, it is not unique. A finding of innocence would force judges, lawyers and politicians to confront broad questions surrounding criminal justice reform. Foremost is abolishment of the state-based death penalty. Also, a Petition to Convene a Court of Inquiry recently filed on behalf of Willingham’s relatives asks whether state officials committed a crime by allowing an execution to proceed despite evidence that challenged his guilt – in this case, discredited science. The petition further asks whether the state has a duty to reopen cases if modern science debunks results of old investigations.

The Trial:

Cameron Todd Willingham was charged with setting a 1991 fire in his home in Corsicana, Texas that killed his three young daughters. The primary evidence against him was the testimony of Manuel Vasquez and Douglas Fogg, the initial fire investigators. They believed that puddle patterns on the floor were signs someone had poured an accelerant throughout the house. Unable to devise a motive, the trial prosecutor, John Jackson, painted Willingham as a sociopath instead – he had satanic images of rock bands on his walls, a skull tattoo on his arm, and a criminal history of theft. James P. Grigson, a forensic psychiatrist who testified he was a sociopath, had never met Willingham and was later expelled from the American Psychiatric Association for violating ethics. Another key witness, Johnny Webb, was a jailhouse informant who said Willingham confessed to him to setting the fire. As time passed, Webb’s memory changed …

“It’s very possible I misunderstood what he said … My memory is in bits and pieces. I was on a lot of medication at the time. Everyone knew that.” Yet, after Webb’s testimony, Jackson got him released from prison early. – New Yorker

Willingham’s lawyers, assigned by the state, were 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.” They had tried to find a fire expert to challenge Vasquez’ and Fogg’s testimony, but the one they contacted agreed with the prosecution. Willingham was offered a life sentence in exchange for pleading guilty. He refused, and was convicted of capital murder in 1992.

Clemency Denied:

In January 2004, a relative of Willingham’s and his pen-pal, Elizabeth Gilbert who had reviewed the trial records, sought the help of Dr. Gerald Hurst, an acclaimed scientist and fire investigator. Hurst agreed to review the case, and concluded that the opinions of the fire investigators contained “glaring errors,” were based on “junk science,” and that he had little doubt the fire was accidental, most likely caused by a space heater or faulty electrical wiring. The report was given to the Texas Board of Pardons and Paroles along with an application for executive clemency. On February 13th, Perry denied the application, and Willingham was executed on February 17, 2004.

Questions Begin to Surface:

In December 2004, according to a comprehensive, in-depth article in the New Yorker (Trial by Fire by David Grann), “questions about the scientific evidence began to surface.” Upon learning of Hurst’s report, two journalists at the Chicago Tribune, Maurice Possley and Steve Mills, asked fire experts to examine the evidence, and the experts concurred with Hurst’s report. The case was eventually referred to the Texas Forensic Science Commission, established in 2005 to investigate allegations of error and misconduct by forensic scientists. The Commission hired arson expert Craig Beyler, Chairman of the International Association of Fire Safety Science, to study the case. In a stinging report, Beyler concluded that investigators in the case “had no scientific basis for claiming the fire was arson, had 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.

The Innocence Project Reviews the Case:

The Innocence Project was founded in 1992 by Barry Scheck and Peter Neufeld “to assist prisoners who could be proven innocent through DNA testing. To date, 259 people in the United States have been exonerated by DNA testing, including 17 who served time on death row.” (Update: 261 as of October 22, 2010)

Through the Freedom of Information Act, the Innocence Project obtained all records from Governor Perry’s office and the Commission pertaining to the new reports, and hired their own fire investigators to conduct an independent review of the arson evidence. The panel concluded:

“… each and every one” of the indicators of arson had been “scientifically proven to be invalid … 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. The only reasonable conclusion is that the governor’s office and the Board of Pardons and Paroles ignored scientific evidence.”

In 2006, the Innocence Project formally submitted their case to the Texas Forensic Science Commission, asking the State to conduct a full investigation. In 2008, the Commission agreed to investigate the case.

Perry Makes His Move:

Just days before the Commission was set to conduct a review, Perry replaced its chairman, Sam Bassett, and three of its other board members. He defended this move saying: “What’s happening is we’re following pretty normal protocol. Those individuals’ terms were up so we’re replacing them.” (Governor Perry Defends Arson Board Shakeup) The new Chairman, Williamson County District Attorney John Bradley, has since done everything possible to impede the probe.

Perhaps the most indicative of the slant of the commission investigation under Bradley is the fact that Beyler has not been asked to defend his report, for which he was paid $36,000 by the state. Instead, the commission sought responses by the state fire marshal and Corsicana officials, who predictably endorsed the original findings.” – Houston Chronicle

Petition to Convene Court of Inquiry:

On September 24, 2010, lawyers for Willingham’s relatives filed a “Petition to Convene a Court of Inquiry,” asking Travis County District Judge Charlie Baird to examine facts that could exonerate Willingham. It also asks: a) if there is probable cause to charge several named Texas officials with oppression, on the grounds that they failed to consider, before Willingham’s execution, that he was convicted on discredited arson science; and b) whether the state fire marshal has a duty to reopen cases if modern science debunks results of old arson investigations. Barry Scheck, Co-Director of the Innocence Project, is Of-Counsel on the case.

Beginning today (October 14, 2010), Judge Baird will hear testimony from experts who say the fire was accidental and that the trial evidence was based on flawed science. Baird has also issued a subpoena for Johnny Webb. The hearing, originally set for October 6th, was postponed after Navarro County District Attorney Lowell Thompson (whose office originally convicted Willingham) filed a Motion for Baird to recuse himself. Baird rejected the Motion and continues to preside over the case.

Republican Governor Rick Perry has continued to defend his decision not to stay the execution, calling Willingham “an absolute monster.” But Baird’s ruling after this hearing may open new issues for Perry because it comes just before the November 2nd election where he is facing former Houston mayor, Democrat Bill White. Perry has been governor since 2000 and is seeking a third term in office.

UPDATE 1:   October 14, 2010 — A state appeals court halted the hearing Thursday when an emergency stay ordered District Judge Charlie Baird not to rule on the case. The stay came, however, after expert testimony was already completed. The order gives Innocence Project lawyers until October 22nd to respond. District Attorney R. Lowell Thompson sought the stay after Baird declined to recuse himself; Thompson had challenged his impartiality, noting he received an award from the Texas Coalition to Abolish the Death Penalty. Barry Scheck said he is confident the stay will be lifted next week permitting Baird to issue a ruling: “We have great law on our side.”

UPDATE 2:   December 21, 2010 — Appeals court rebukes Baird in Willingham case:  ‘With judge leaving bench, future of case unclear … An Austin appellate court ruled Tuesday that state District Judge Charlie Baird abused his discretion in handling an inquiry into the case of Cameron Todd Willingham, a Corsicana man whose lawyers contend that he was wrongfully executed in 2004 … In a statement, Barry Scheck, who represents Willingham’s family and is co-director of the New York-based Innocence Project, said he was disappointed. “We feel this is a matter of extreme importance, particularly to the Willingham family and to the justice system in Texas,” the statement said. “We are determined to find a way to get an adjudication on the merits in the Texas courts to restore Willingham’s reputation.” ‘  Read more  →

UPDATE 3:    September 8, 2011 article — “Life And Near-Death In Texas” by Media Matters
“Willingham’s case is an important one, but we should also be talking about the many wrongly convicted prisoners freed from death row in Texas in the last ten years. They, more than the unresolved Willingham case, demonstrate conclusively not just that the Texas criminal justice system is capable of making catastrophic errors when meting out capital punishment, but also that such errors happen with appalling frequency.”  Read more →

  Some Other Things You May Want To Know About Rick Perry

Ladies and Gents … The Real Rick Perry, by Sandy Berman, August 13, 2011  – and –
The Rick Perry You Never Knew, by Vyan, June 11, 2011

Trial by Fire, New Yorker, Sep 2009
Innocence Project: Willingham Wrongfully Convicted
Cameron Todd Willingham Website
Killing an Innocent Man, Sep 2009
Petition to Convene a Court of Inquiry
Judge to Open Court of Inquiry, Star-Telegram
Defrosting Cold Cases, Hearing Postponed
The Wrong Man, by Alan Berlow, The Atlantic, Nov 1999

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