The New York Times is reporting that the Innocence Project today will ask Texas Governor Rick Perry “to order the Texas Board of Pardons and Paroles to investigate whether the state should posthumously pardon Mr. Willingham [Cameron Todd Willingham], whose 2004 execution has become a lightning rod of controversy over the Texas justice system.”
“This is a terrible thing to not only execute somebody who was innocent; this is an individual who lost his three children,” said Barry Scheck, co-founder of the Innocence Project.
The group now believes it has evidence that will show that the prosecutor in the case elicited false testimony from and lobbied for early parole for a jailhouse informant, who testified in 1992 that Mr. Willingham had confessed to setting the blaze that killed his three daughters.
“The Innocence Project also alleges that the prosecutor withheld Mr. Webb’s subsequent recantation. The organization argues that those points, combined with flawed fire science in the case, demand that the state correct and learn from the mistake it made by executing Mr. Willingham.,” the Times reports.
The story of Mr. Willingham gained national attention, first with a New Yorker article and then with the Frontline episode, “Death by Fire.”
As then-Chicago Tribune investigative reporter Maurice Possley wrote in 2004, “A Tribune investigation of his case shows that Willingham was prosecuted and convicted based primarily on arson theories that have since been repudiated by scientific advances. According to four fire experts consulted by the Tribune, the original investigation was flawed and it is even possible the fire was accidental.”
More remarkably, prior to Mr. Willingham’s February 17 execution, “Texas judges and Gov. Rick Perry turned aside a report from a prominent fire scientist questioning the conviction.”
“There’s nothing to suggest to any reasonable arson investigator that this was an arson fire,” Professor Gerald Hurst, a Cambridge University-educated chemist, told the Tribune. “It was just a fire.”
Without arson, there was no murder in his case, and thus the possibility is raised that an innocent man was convicted and executed.
Another investigator, Lousiana Fire Chief Kendall Ryland, also a former fire instructor at Louisiana State University, said that he tried to re-create, in his workshop, the conditions the original fire investigators described.
When he could not, he said it “made me sick to think this guy was executed based on this investigation. … They executed this guy and they’ve just got no idea–at least not scientifically–if he set the fire, or if the fire was even intentionally set.”
In 2011, the Texas Forensic Science Commission agreed with the assessment that the scientific underpinnings of the arson conclusion were faulty.
The Times reports that former Judge John H. Jackson, the Navarro County prosecutor who tried Mr. Willingham, said the Innocence Project’s claims were a “complete fabrication” and “that he remained certain of Mr. Willingham’s guilt.”
“I’ve not lost any sleep over it,” Mr. Jackson told the paper.
The Times reports that Barry Scheck told them that “his organization has discovered that prosecutors went to great lengths to secure false testimony from Mr. Webb, to repay him for helping secure the conviction and to hide the recantation.”
The Times continues, “During the trial, Mr. Webb, who was in jail on an aggravated robbery charge, said he was not promised anything in return for testifying. But correspondence records indicate that prosecutors later worked to reduce his time in prison.”
“In a 1996 letter, Mr. Jackson told prison officials Mr. Webb’s charge should be recorded as robbery, not aggravated robbery,” the Times writes. “But in legal documents signed by Mr. Webb in 1992, he admitted robbing a woman at knife point and agreed to the aggravated robbery charge.”
In 1996, the prosecutor’s office would urge clemency for Mr. Webb, “arguing that his 15-year sentence was excessive and that he was in danger from prison gang members because he had testified in the Willingham case.”
Four years later, however, he wrote a motion recanting his testimony, claiming that the prosecution had forced him to lie.
The Times reports, “That motion, Mr. Scheck said, was not seen by Mr. Willingham’s lawyers until after the execution. Meanwhile, he said, prosecutors used the testimony to stymie efforts to prove Mr. Willingham’s innocence and prevent his death.”
The prosecutor, Mr. Jackson, “said he made no promises to Mr. Webb. He also said Mr. Webb had sent him a letter explaining that the recantation motion was untruthful but that he was forced to submit it by prison gang members who supported Mr. Willingham.”
“There’s no doubt the arson report was based on archaic science, but from a practical standpoint I think the result was absolutely correct,” Mr. Jackson said.
In a commentary by Gardner Selby, he wrote, “Outside experts who later looked over evidence fueling the verdict concluded that the fire was accidental – not arson.”
Mr. Selby continued, “The first one, Dr. Gerald Hurst of Austin, hurriedly wrote a report faxed to Perry’s office hours before Willingham was killed stating that most conclusions by the initial investigators ‘would be considered invalid in light of current knowledge.’ “
Dr. Hurst told Mr. Selby that he wished he had been more direct.
“The whole case was based on the purest form of junk science,” Hurst said. “There was no item of evidence that indicated arson.”
Wrote Mr. Selby, “As far as I can tell, no one has divined precisely what Perry reviewed before denying Willingham’s requested 30-day stay of execution.”
According to a 2009 investigative report by the Chicago Tribune, arson expert Dr. Craig Beyler found “that investigators failed to examine all of the electrical outlets and appliances in the Willinghams’ house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham’s injuries could not have been caused as he said they were.”
Moreover, Dr. Beyler concluded in his report that the state’s fire marshal had “limited understanding” of fire science. The fire marshal “seems to be wholly without any realistic understanding of fires and how fire injuries are created,” he wrote.
The marshal’s findings, he added, “are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”
Wrote the Tribune, “Over the past five years, the Willingham case has been reviewed by nine of the nation’s top fire scientists — first for the Tribune, then for the Innocence Project, and now for the commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.”
While it is likely that Governor Perry, who “has made his position on the case pretty clear,” will not pardon Mr. Willingham, a new governor who would take office in 2015 might.
—David M. Greenwald reporting
