A Scientific Panel Affirms That Texas Executed An Innocent Man-Todd Willingham

At Willingham Hearing, Science Finally Takes Center Stage
by DAVE MANN

Published on: Friday, October 15, 2010
In an Austin courtroom on Thursday afternoon, six years after he was executed, Cameron Todd Willingham finally received the defense he deserved.

It was technically called a “court of inquiry,” a rarely used legal hearing in which the Willingham family and the Innocence Project asked Austin Judge Charles Baird to determine if Texas wrongly convicted Willingham of starting the 1991 fire that killed his three children.

But the three-hour hearing on Thursday felt very much like a re-trial. At Willingham’s actual trial in 1992, his two court-appointed defense attorneys called just one witness. They didn’t bother to put a forensic expert on the witness stand to counter the prosecution’s arson evidence. And they failed to undermine the testimony of jail-house snitch Johnny Webb, a man with 13 convictions, who claimed Willingham confessed to starting the fire.

Yesterday, however, some supremely talented attorneys dressed in supremely expensive suits eviscerated the evidence against Willingham. They swiftly discredited Webb by displaying his own hand-written document recanting his testimony against Willingham and claiming prosecutors forced him to lie in court in exchange for a reduced sentence. Then the lawyers put on the witness stand two of the nation’s top fire scientists, who went point-by-point and debunked every piece of arson evidence in the case.

Anyone who might counter this testimony—the governor’s office, the state fire marshal’s office and the Navarro County DA’s office, which convicted Willingham originally—declined Baird’s invitation to take part in the hearing. So the Willingham side had the court to itself. After three hours of unchallenged evidence, former Texas Gov. Mark White, one of four attorneys who spoke, concluded the hearing. “Every shred of evidence points to his innocence,” he told the court. Then he took on the larger issue of the death penalty. “ It is time for a change in the way we carry out sentences that have no reversibility.”

Baird said he would study the case and make a ruling soon. But it’s not clear he’ll get that chance. As the hearing was ending, the state’s Third Court of Appeals issued an order halting the inquiry. (You can read more details about that here.) The Navarro County DA, appeared briefly before Baird and made an unsuccessful motion to recuse the judge. He then asked the appeals court to stop the hearing.

The appeals’ court action added one more bit of drama to a day that included White’s remarks about the death penalty and accusations that Texas executed an innocent man and that Gov. Rick Perry let it happen.

Those topics have dominated the news coverage of the Willingham case for years—and will likely continue to dominate it.

But, on this afternoon, the arson forensics finally came to the forefront.

As I've written before in this space, the forensic science is what matters most here. There are roughly 750 people in Texas prisons on arson convictions. Hundreds of them are likely innocent. (For more details on that math, read this story.)

Last year, I chronicled the cases of three men—Curtis Severns, Ed Graf and Alfredo Guardiola—who were likely wrongly convicted of arson. All three remain in prison at this very moment.

Reformers have long hoped the high-profile Willingham case would bring more attention to the issue of flawed arson evidence and perhaps lead to an official inquiry that would exonerate people like Severns, Graf and Guardiola, and many others.

Instead the Willingham case has become saturated and bogged down in the politics of the death penalty and the governor’s race. The details of the fire science are often glossed over. (Even the Forensic Science Commission, which is conducting its own separate inquiry of the Willingham case, hasn’t held a detailed discussion, at least in public, of the flawed arson evidence—though that may yet happen at the commission’s meeting in November.)

But on Thursday a courtroom full of spectators, reporters, cameramen and a judge sat rapt while John Lentini and Gerald Hurst, two nationally renowned fire experts, tore apart the forensic evidence against Willingham and so many others.

Under questioning from Barry Scheck of the Innocence Project, Lentini testified for more than an hour. He delivered a detailed, occasionally sardonic power-point presentation that undermined every one of the 20 supposed indicators of arson that Manuel Vasquez—who handled the case for the fire marshal’s office in 1991 and has since passed away—used to convict Willingham.

Lentini began simply: Fires within enclosed structures behave differently than you think. A fire in your house will do wildly different things than a campfire or a wild fire. Sure, heat rises, but if the fire is inside a structure, the heat will become trapped by the ceiling, forming a layer of gas and smoke at the top of a room. That heat will eventually descend and warm the entire room until that room explodes in flames. This is a stage of fire known as “flashover.”

Lentini showed a portion of this video—in which a smoldering cigarette dropped in the cushions of a recliner engulfs the room in flames in about three minutes.

The key point is this: Flashover can make an accidental fire look very much like an arson—by leaving clues that investigators once thought were dead giveaways of an intentionally set blaze.

For instance: Fire investigators once thought that fire burned only upward. (“All fire goes up,” Vasquez told the Willingham jury back in 1992.) So if the floor was burned, then the fire must have started on the floor. And the burn patterns on the floor and under tables likely showed where an arsonist had poured an accelerant. These were called “pour patterns.”

When Vasquez found several pour patterns at the scene, he theorized Willingham had poured kerosene in the kids’ bedroom, through the house and out the front door. Chemical testing found no traces of an accelerant inside the house. But Vasquez was undeterred. He believed so blindly in the burn pattern evidence, the absence of an accelerant didn’t matter. It must have been arson because that’s what the “pour patterns” showed.

Lentini scoffed at that. We now know those burn patterns are simply the result of a fire going to flashover. Those burn patterns tell you nothing about how the fire started. “I could tell a jury that this is a pour pattern,” Lentini said, while displaying a photo of the burned floor from the Willingham house, “and they’ll believe me, but that’s not true.”

Lentini similarly dismantled Vasquez’s other evidence:

Multiple points of origin. This is the “holy grail” of fire investigation, because accidental fires almost never start in more than one place. So, if you can show a fire started at multiple points, then you normally have arson. Vasquez tried this in the Willingham case. That was a serious error, Lentini said, even back in the dark ages of 1991. Multiple points of origin typically means several starting points, unconnected to each other in multiple rooms. If you have one starting point in the kitchen and another starting point in the bedroom upstairs—and there’s no fire trail connecting them—that’s probably arson. But in the Willingham case, the entire house was burned—all the damage was connected. “Multiple origins have to be isolated,” Lentini said. “In the Willingham fire, all the damage was contiguous.” There was no way a competent investigator, even in 1991, could find multiple, independent points of origin at the Willingham scene.

V-patterns. These are v-shaped burn marks that investigators once thought pointed to where a fire started. Because investigators like Vasquez believed wrongly that fire always burns up, a v-pattern near the floor must “point” to where an arsonist started a blaze on the floor. Vasquez testified that he found a v-pattern near the door, leading him to conclude that Willingham started a point of origin there. That conclusion was false. We now know that v-patterns in post-flashover fires occur when the fire sucks in air. V-patterns often are found near ventilation points like windows and doors. In the Willingham case, the v-pattern near the door simply shows where the fire breathed in air to sustain itself. It isn’t an indicator of arson.

Melted aluminum threshold. Vasquez found that the aluminum threshold on the front door to Willingham’s house had melted. It was once thought that melted metal (and warped bed springs and elaborate cracks in windows) was a sign of arson because it showed that a fire burned especially hot. Investigators once thought arson fires burned hotter than accidental fires—because accelerants burned hotter. Numerous experiments have shown that's not true. Accidental fires and gasoline fires can reach the same temperature. Yet Vasquez testified that only a fire fed by an accelerant could get hot enough to melt the aluminum threshold. He theorized Willingham poured kerosene across the doorway so no one could escape. That is all patently false. The melting point of aluminum is 1,200 degrees, a temperature that any accidental fire could attain, Lentini said. The melted threshold—and the warped bed springs and the cracked windows—provide no clues to how the blaze started. The fact that they’re melted simply shows they’d been in a fire. Nothing more, nothing less.

I’ll stop there. Lentini had many other examples, but you no doubt get the picture. So, how did the Willingham fire start? Dr. Hurst—the Cambridge-educated chemist and Austin-based fire expert who took the stand last—theorized that faulty wiring in the childrens' bedroom was a possible cause of an accidental fire. But he concedes it’s impossible at this point to know with any certainty how the fire started. But one thing is certai: None of the nine fire scientists who have studied the case since 2004 have found a single piece of credible evidence of arson.

“The bottom line is all the evidence is consistent with an accidental fire.,” Lentini said.

I found the scientific presentation fascinating. We’ll find out Friday if some of those details find their way into the media coverage.

When the hearing ended, though, reporters mobbed Gov. White and peppered him with questions about the death penalty and Perry’s handling of the case.

Meanwhile, Dr. Hurst and his wife sat by themselves a few feet away. Hurst has seen many faulty arson cases over the years, working pro bono with attorneys and journalists to free people wrongly accused or wrongly convicted (he examined the three cases I profiled last year). He’ll tell you that fire investigations are becoming more scientific and that the field is improving. But he still sees a lot of flawed cases. In fact, Hurst told me, while he was sitting in Baird’s courtroom Thursday waiting to testify, an assistant DA approached him and asked Hurst to examine an arson case. The bad cases will keep coming. There are many people who, unlike Willingham, can still be helped.

In that sense, this hearing wasn’t really about Cameron Todd Willingham. It was about the wider problem and the potentially hundreds of people still in prison whose names we don't yet know.

An Innocent Man Executed-The Human Side

Texas resists family's effort to clear executed man's name

By Matt Smith, CNN

November 9, 2009 10:03 p.m. EST

Eugenia Willingham shows photographs of her lost grandchildren and the stepson who was executed.

STORY HIGHLIGHTS

• Todd Willingham was executed by lethal injection in Texas in February 2004
• To the end, he denied setting the fire that killed his kids
• His other relatives are fighting to clear his name
• Case creates controversy as governor resists and arson experts are challenged

Ardmore, Oklahoma (CNN) -- Cameron Todd Willingham's family here in Oklahoma never believed he set the fire that killed his three daughters.

"We could not even imagine it," his cousin, Patricia Cox, recounted recently. "That was completely ludicrous to us."

But 16 days after the fire, Willingham was arrested. And within a year, he was on death row. On February 17, 2004, he was strapped to a gurney in a Texas prison and given a lethal injection, proclaiming his innocence to the end.

The story of how Willingham -- Todd, to his family -- went from a home on a shady street in Ardmore to the death chamber is a tale of science and skull tattoos, of last-minute hopes raised and dashed. It is a story wrapped up in allegations that the governor who let the execution go forward is now trying to derail an investigation into whether Texas put an innocent man to death.

And in Ardmore, where Willingham's baby shoes still sit on a desk in the house where he grew up, the family that fought to save his life is still trying to clear his name.

"It's not over," Cox's sister, Judy Cavnar, said. "This is a long way from being over."

This is a long way from being over
--Judy Cavnar

The fire started about 10 a.m. on December 23, 1991. Willingham, then 23, was asleep in the wood-frame home in Corsiana, Texas, that he shared with his wife and children. Stacy had gone out to buy presents for 2-year-old Amber Kuykendall and the 1-year-old twins, Karmon and Kameron Willingham.

Money was tight

Times were tough for the couple. Todd, who'd worked as a mechanic, at an auto-parts store and for a glass company, was unemployed and the couple was behind on bills.

Willingham told investigators that Amber woke him up when the fire broke out, and he told her to get out of the house. He said he then crawled on the floor into the children's room to find the twins, but failed.

Christmas was spent making funeral arrangements. Stacy's family blamed Todd for the children's deaths "because he couldn't get them out," said his stepmother, Eugenia Willingham. "There was so much friction in the air."

People in Corsicana took up a collection to help the family. Donations helped pay for gravestones and a plot in an old cemetery downtown. But to police, the grieving father was starting to look like a murderer.

He told different stories about how he escaped the fire. He said he thought Amber was in the children's room, which had a baby gate at the door, but her body was found on his and Stacy's bed. His injuries didn't match what he told investigators about his efforts to rescue the girls. Witnesses at the scene said Willingham wouldn't go back into the house once he escaped, but took care to move his car away from the burning home.

"The actions he took were not the actions of someone with a kid burning up and him right outside," said Sgt. Jimmie Hensley, the lead investigator for Corsicana police.

The actions he took were not the actions of someone with a kid burning up and him right outside.
--Sgt. Jimmie Hensley

Despite Willingham's complaints about a faulty microwave and squirrels in the attic, firefighters found no sign of electrical issues that might have caused the fire. A space heater in the children's bedroom was off, and the gas line that fed it had no signs of a leak. But they did find burn patterns on the walls and floor that were considered signs some sort of flammable liquid was used to start the blaze, as well as patterns of cracked glass that were considered a sign of arson.

Meanwhile, detectives began to hear about Todd's fights with Stacy, including claims he once beat her in order to cause a miscarriage. Police said he told his mother-in-law that he believed he would be blamed for the deaths because of "unusual marks" on Amber's neck.

Willingham was arrested January 8, 1992, the day before his 24th birthday. He told his stepmother, "I don't have a chance down here."

'He didn't go quietly'

Todd was an outsider in Corsicana, a town about 60 miles south of Dallas. Stacy's family had deep roots there, and he'd moved there to be with her after a stretch in an Oklahoma boot camp for a probation violation.

As a teenager, Todd had started huffing paint and dropped out of school. He'd been on probation for burglary, theft and driving under the influence and did a few days in a county jail for carrying a concealed weapon.

"He was certainly defiant and rebellious, as teenagers sometimes are in high school," Cox said. But his probation officer "took a special interest in him. I think she saw in him, too, that he was a child of inopportunity."

Todd's father, Gene, ran an auto salvage yard in Ardmore, an oil patch town with a sharp line between rich and poor. He took custody of the 13-month-old boy after his ex-wife abandoned him as an infant, and he and Eugenia raised him.

Eugenia Willingham acknowledges that Todd and Stacy had a "stormy" relationship, and that Todd told differing stories in the days after the fire. But she added, "I don't think he really knew what he did. I'm sure he was in shock." And before his execution, he admitted he hadn't gone back inside after his first attempt to find the children.

"He just didn't want people to think he didn't try," she said. "Of course, they thought that anyway."

He just didn't want people to think he didn't try. Of course, they thought that anyway.
--Eugenia Willingham

Willingham's August 1992 trial lasted three days. Prosecutors had offered him a chance to plead guilty in exchange for a life sentence, but he refused.

The Willingham family raised money for his attorneys and for a new suit for the trial, only to hear prosecutors mock Todd as "a baby-killer dressed up like a lawyer," Eugenia said. Witnesses called him a "sociopath" incapable of rehabilitation and suggested the tattoo of a skull on his left shoulder, combined with his fondness for heavy-metal bands like Iron Maiden, indicated a bent toward Satanism -- a claim that still rubs the family raw.

Quick verdict

The jury took less than an hour to find him guilty of capital murder. Eleven and a half years later, his appeals exhausted and pleas for clemency denied, he was headed for the death chamber. His relatives last saw him less than an hour before the execution.

"He told us he had 55 minutes until he'd be a free man," Cavnar said. But when a prison doctor came to check on him, Todd told him, "I'm not going to die on you. You're going to have to kill me."

After the execution, a prison chaplain told the family, "Todd went, but he didn't go quietly."

Stacy was the only one of his relatives to view his death. Though she stood by him during the trial, forcing prosecutors to question her as a hostile witness, she filed for divorce soon after he went to death row. Eventually, Willingham's family said, she came to believe he was guilty -- and as his execution drew near, she refused to allow him to be buried alongside the children.

Witnesses said Todd died cursing her, saying he hoped she would "rot in hell."

"I am an innocent man," he declared, "convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do."

His body was cremated. Despite Stacy's wishes, his family snuck into Corsicana to scatter some of his ashes on the girls' graves.

I am an innocent man, convicted of a crime I did not commit.
--Todd Willingham's last words

"We weren't in the cemetery 10 minutes before everyone knew it," Eugenia Willingham said.

Efforts to reach Willingham's ex-wife for this story were unsuccessful. But in a statement issued to the Fort Worth Star-Telegram in October, she said Willingham confessed to killing the girls during a visit about two weeks before his execution.

"He said if I didn't have my girls I couldn't leave him and that I could never have Amber or the twins with anyone else but him," her statement reads. "He told me he was sorry and that he hoped that I could forgive him one day."

She had never reported that confession before, and told the Corsicana Daily Sun in 2004 that her ex-husband was sticking to his account of the fire. And Willingham's family disputes the account, his stepmother said.

Cox said the Willinghams have tried to be sensitive to Stacy's family -- but "there's a loss up here not of three lives, but four."

Governor's shakeup draws new scrutiny

In the years between Willingham's trial and execution, Cox tried to get television crime shows interested in her cousin's case. One show, in 2002, featured Gerald Hurst, a chemist and explosives expert in Austin, Texas.

There's a loss up here not of three lives, but four.
--Patricia Cox

"All I had was a town," she said. "So I got on the Internet and I sent six letters out to attorneys who handled arson cases."

One of those lawyers responded with a phone number for Hurst, but Cox said no one answered when she called -- "Not even voice mail." But Todd still had appeals, and it "wasn't critical," she added. After several more unsuccessful efforts, she moved on.

By late 2003, it was critical. The U.S. Supreme Court refused the last of his appeals. His execution date was set for February 2004. Cox had started lobbying the governor's office for a reprieve, and she decided to make one "last desperate attempt" to reach Hurst in early January 2004.

"I just simply picked up the phone again, and he actually answered. I couldn't believe it. I think I was speechless."

With just weeks remaining before the execution, Hurst agreed to look into the case. He concluded that the indicators investigators pointed to as evidence of arson had been rendered obsolete since 1991, and "would be considered invalid in light of current knowledge."

The family was elated by the report. But, Cox said, "It got better before it got worse."

Hurst's report went to the state Court of Criminal Appeals. In a two-page order the day of Willingham's execution, it ruled the report "does not meet the requirements for consideration" as new evidence of innocence.

It also went to the state Board of Pardons and Paroles, which denied a request for clemency, and to Gov. Rick Perry, who could grant only a 30-day stay of execution without the parole board's authorization. None moved to stop Todd's execution.

"We just ran out of time," Cox said. "Todd ran out of time. We all ran out of time."

Innocence Project weighs in

But since 2004, two more reports have backed up Hurst's findings. The first was delivered in 2006 by the Innocence Project, which seeks to clear prison inmates it believes were wrongly convicted. That led the Texas Forensic Science Commission to mount its own investigation.

The commission hired Craig Beyler, chairman of the International Association for Fire Safety Science, to review the evidence against Willingham. And Beyler's report, filed in August, determined that the finding of arson in the Willingham fire "could not be sustained." The investigators who testified the fire was deliberately set "had poor understandings of fire science and failed to acknowledge or apply the contemporaneous understanding of the limitations of fire indicators," it states.

In a 21-page rebuttal, the Corsicana Fire Department says it stands by its original conclusions. Hensley dismissed the reviews as "Monday-morning quarterbacking" by experts unfamiliar with all the evidence.

"I'm firmly a believer that justice was served," Hensley said.

But opponents of capital punishment say the Beyler report has brought Texas eyeball-to-eyeball with the uncomfortable prospect of admitting it had put an innocent man to death. And they say Perry -- a Republican facing a tough primary challenge in March -- blinked.

Report to Texas Forensic Science Commission | Fire department response (PDFs)

Shake-up stalls probe

Two days before the Forensic Science Commission was to question Beyler in a public forum, the governor replaced its chairman and two other members whose terms were up. That forced the commission to delay the hearing so new members could read up on the case, and no new date has been set. Perry has since replaced a third member of the commission.

I'm firmly a believer that justice was served.
--Sgt. Jimmie Hensley

The governor defended the replacements as routine, and says he remains confident of Willingham's guilt. He told reporters in October that Willingham was a "monster" whose conviction was upheld repeatedly by the courts.

But the shakeup has become an issue in his re-election campaign, and a state Senate committee has a hearing scheduled Tuesday to question the Forensic Science Commission's new chairman about his plans for the case.

"I want a status report," state Sen. John Whitmire, D-Houston, the chairman of the Senate Criminal Justice Committee. "He's been there a month."

Back in Ardmore, the Willingham family has learned some hard lessons. One is that there's a legal system in America -- "not necessarily a justice system," Cavnar said.

Now that the Texas investigation is in limbo, Cox said she's choosing her words carefully. The investigation "meant everything to us," she said. "We're a little fearful that it's not going to happen."

But she said they're still determined to press the issue -- not just for Todd, but for others on death row who might be in the same circumstance.

Said Cox: "If you don't think it can happen to you, you're wrong."