Poster Child For Why Death Penalty Flawed 3

I’ve been posting lately about a legal case that could end up being the first to uphold conclusively, that an innocent man was executed by the State, for a crime he didn’t do. Cameron Todd Willingham, was executed using a lethal injection by the State of Texas in 2004. The United States Supreme Court upheld the death penalty in 2006, with Justice Antonin Scalia declaring that death penalty opponents could not cite “a single case” in which it was clear that a person was executed for a crime they did not commit.  But there is strong evidence, suggesting Willingham could be that single case, the judge was talking about. In previous posts on this topic, I deconstructed the forensic evidence against Willingham and demonstrated how it was hopelessly flawed and based on old wives tales rather than scientific fact.

Here is a brief summary of the case: On December 23, 1991, a fire destroyed the Willingham family home in Corsicana, Texas. The blaze claimed the lives of Willingham’s three daughters: Amber Louisel, who was two, along with one-year-old twins Karmon Diane and Kameron Marie. Willingham, at the time, was a 23-year-old unemployed motor mechanic. He said he woke from a nap, to discover the house filled with smoke. He was unable to find the sleeping children before he managed to escape the flames with minor burns.The so-called expert arson investigators, relied on by the prosecution, concluded that Willingham set fire to a trail of accelerant he laid from the front door of the house, to the children’s bedroom. His motive was to cover up allegations that he abused his children. Allegations, I might add, without merit or evidence.

For more than 20 years, the prosecutor, who persuaded a jury to convict Cameron Todd Willingham, of murdering his three young daughters, has maintained authorities made no deals to secure the testimony of a jailhouse informer, who told jurors that Willingham confessed to the crime in prison.

Those officials continued to defend the account of that informer, Johnny E. Webb. But now new evidence is reviving claims that Willingham was innocent. In taped interviews, Webb, who has previously both recanted and affirmed his testimony, now gives a detailed account of how he lied on the witness stand in return for efforts to get him favourable treatment by the prosecutor. Now, you have to be extremely careful about assessing the credibility of a witness who changes his story more than once. But there is evidence suggesting that Prosecutor  John H. Jackson, directly intervened to reduce Webb’s prison sentence for robbery and to arrange for thousands of dollars to be given to the prisoner by a wealthy Corsicana rancher in return for his testimony against Willingham. Newly uncovered letters and court files show that Jackson worked diligently for Webb to receive a lesser sentence and to coordinate with the millionaire rancher, Charles S. Pearce Jr., to provide financial support.

“Mr. Pierce and I visit on a regular basis concerning your problems,” Jackson wrote to Webb in August 2000, eight years after the trial, when his former witness threatened to recant his testimony. “We worked for a long time on a number of different levels, including the Governor’s Office, to get you released early in the robbery case. . . . Please understand that I am not indifferent or insensitive to your difficulties.”

The letters and documents expose a determined effort by prosecutor Jackson to change Webb’s conviction, get him speedy parole, clemency and relocate him from a tough state prison to his hometown jail. Many lawyers are of the opinion that had this favourable treatment been revealed before his execution, there were legal grounds for Willingham to seek a new trial.

Here is a summary of the sequence of events:

Johnny E. Webb is arrested on robbery charges. After talking to Willingham at the county jail, Webb says he was recruited by prosecutor Jackson, to testify against Willingham. Webb agrees and pleads guilty to the lesser charge of first-degree aggravated robbery.

Webb testifies at the Willingham trial that Cameron Todd Willingham confessed to murdering his daughters. Here is the interesting bit. Jackson emphasizes that he made no deal with Webb in return for his testimony. Jackson tells jurors the case rests on two pillars: the arson evidence and Webb’s testimony. The jury convicts Willingham and votes for the death penalty

Jackson asks the Texas Board of Pardons and Parole to grant Webb an early parole hearing and to release him immediately.

In documents recently released, Jackson then writes to Webb on his personal stationery stating that he has been working on Webb’s behalf.

Jackson described the forensic evidence and Webb’s testimony as the foundations of his case, either of which he claimed was enough to convict Willingham. More recently, Jackson acknowledged that one of his foundation pillars had already crumbled but claimed that the trial presented “overwhelming evidence of guilt completely independent of the undeniably flawed forensic report.”

But the letters and court files show that Webb threatened to renounce his testimony against Willingham on at least two prior occasions. In 2000, he sent a formal motion to recant his testimony to the Navarro County District Attorney’s Office that was forwarded to Jackson, but never put in Willingham’s court file or shared with his lawyers.

Jackson, was elected as a Navarro County judge in November 1996 and retired from the bench in 2012. He claims he was just going out of his way to help Webb. But in a recent interview Jackson claimed he did so because he thought Webb was threatened by other inmates for cooperating with the prosecution. He described allegations that he coaxed false testimony from Webb as a “complete fabrication.”

Webb’s latest allegations  could have implications for the political ambitions of Texas governor, Rick Perry, a strong supporter of the death penalty and a possible Republican presidential candidate.

In 2004, Perry refused an application for a temporary stay of Willingham’s execution despite the report of a leading forensic expert strongly disputing the finding of arson by a Texas deputy fire marshal. Perry’s administration is also accused of repeatedly undermining the authority of a state Forensic Science Commission, which agreed that the arson finding that convicted Willingham, had relied on flawed analysis. Defending his handling of the case in 2009, the State Governor claimed Willingham “was a monster.”

Johnny Webb was a 22-year-old drug addict when he met Willingham in the Navarro County Jail, that holds about 125 prisoners on any given day. Willingham had just been arrested. Webb, had a long list of prior convictions when he was jailed for robbing a woman at knifepoint. Webb admitted he was stealing to support a drug and alcohol habit. In two taped interviews with the Innocence Project, conducted almost 22 years after his trial testimony, Webb described how the Navarro County sheriff, removed him out of his cell after he had spoken briefly with Willingham. The Sherrif was desperate to know what they talked about.

Webb said the Sherrif, and then Jackson, urged him to speak again with Willingham about the fire to see if he would incriminate himself. Webb claimed, he was taken repeatedly from jail to Jackson’s office in the courthouse, where the prosecutor showed him photographs of the fire scene that included the bodies of the little girls.

“I was in his office three or four times and he laid them pictures out in front of me and said, ‘Johnny, what do you think about that?’” Webb said. “That could be your child. This dude is guilty.”

Webb, was facing the prospect of a lengthy sentence for his crime. He said he asked Jackson, “What’s going to be my deal?” and Jackson allegedly replied, “If you help me, that robbery will disappear . . . even if you’re convicted now, I can get it off of you later.”

Now, it should be pointed out that there is nothing unusual about prosecutors offering informants lenient treatment, but they are obliged to present testimony they believe to be true and to disclose any deals before a trial so that those witnesses can be cross examined.

“He says, ‘Your story doesn’t have to match exactly’,” Webb said. “He says, ‘I want you to just say he put fires in the corners. I need you to be able to say that so we can convict him, otherwise we’re going to have a murderer running our streets.”

Webb told Jackson he wanted to turn his life around and become a properly employed, law abiding citizen. He claims he was told that could be arranged. In the taped interviews, Webb said, “He says, ‘Look, we can get Chuck Pearce ( the millionaire rancher] to help you with anything you need. He’s already there to help you.’ ”

“He had me believing 100 percent this dude was guilty — that’s why I testified,” Webb said. “The perks — they was willing to do anything to help me. No one has ever done that, so why wouldn’t I help them?”

Five months later, in August 1992, Webb was the first witness called by Jackson to testify for the prosecution at Willingham’s trial. Webb told the jury that Willingham, after repeatedly saying the fire was an accident, then confessed to him while they were speaking through a food slot in Willingham’s cell door.

Webb said Willingham told him he squirted lighter fluid around the home and set it on fire. Webb said Willingham and his wife, Stacy, decided to kill the girls to cover up Stacy’s physical abuse of one of the children. However, post mortems revealed no injuries to the girls other than those suffered in the fire. Forensic experts later discredited evidence at the trial that an accelerant was used to start the fire.

Jackson said that Webb was testifying at great personal risk. “My life has been threatened as well as my family’s life,” Webb said on the stand. “And if I make it to the penitentiary, then I’m going to be in deep trouble.”

Jackson ended Webb’s testimony by asking, “Johnny, have I ever promised you anything in return for your testimony in this case?”

“No, sir,” Webb replied. “You haven’t.”

“As a matter of fact, I told you there is nothing I can do for you,” Jackson said.

“You said there was nothing no one can do for me,” Webb said.

Willingham’s defense was pathetic. His lawyers called only one witness, a babysitter who said Willingham loved his daughters. The trial lasted three days. On Aug. 20, 1992, the jury convicted Willingham of the murders of his children and the following day, voted to sentence him to death.

Willingham, who had refused to plead guilty in return for a life sentence, maintained his innocence. In fact proclaiming his innocence were among Willingham’s last words before he was executed.

Two months after the Willingham trial, a typed, unsigned note to the Navarro County clerk,marked “per John Jackson,” instructed the clerk on how to respond to the Texas Department of Corrections if prison officials inquired about Webb’s status. The note said that Webb had not been convicted of first-degree, aggravated robbery, as he had just testified in open court, but only of second-degree robbery. “If TDC calls and wants to know which one is correct — tell them ROBBERY with No Deadly Weapon Used.” The note also explained the change: “That is what John Jackson wants it to be.”

It was an unsigned note and there is no evidence linking it directly to prosecutor Jackson. Days after the note was sent to the clerk, Jackson sent a letter to prison officials requesting that Webb be assigned to a medical unit, less onerous than protective custody. “Mr. Webb was a pivotal witness in a capital murder prosecution,” Jackson wrote. Webb had “placed himself at risk based upon his testimony in the case and I fear that he may suffer reprisal if placed in the general population.”

He added, “Webb’s testimony may be necessary at [a] later stage of the proceedings and I would appreciate your attempting to place him in an environment that guarantees the smallest risk.”

A month later, Jackson followed up with another letter requesting that Webb be transferred back to the Navarro County Jail because he’d received death threats from other inmates. “In the event of a reversal,” Jackson wrote, “I would also like to be able to count on Webb’s continued cooperation.”

Over the next three years, Jackson kept in touch with Webb, and Pearce, the wealthy rancher, deposited more than $2,000 into Webb’s prison commissary account, according to prison records obtained by the Innocence Project.

Jackson’s campaign for Webb’s early release escalated in May 1996, after Webb reported that he continued to receive threats and demanded to be transferred to federal prison or the Navarro County Jail.

“Here the state offered me certain benefits in exchange for my testimony which resulted in sending a man to death row,” Webb wrote to Jackson. “Because I kept my end of the promise, the state is bound to uphold theirs until my release from incarceration.”

Six weeks later, on July 15, 1996, at Jackson’s request, the Judge who presided over Willingham’s trial and sentenced Webb to prison in 1992, entered a new judgment in Webb’s case. The crime was officially recorded as a conviction for second-degree robbery instead of an aggravated robbery, which reduced the time Webb was required to wait before seeking parole.

Jackson then sent a letter to the Texas Board of Pardons and Paroles saying he had “recently” become aware through a letter from Webb that prison records mistakenly showed Webb as being convicted of aggravated robbery.

Jackson told the parole board after consulting with Webb’s attorney, he had obtained a court order changing the record to reflect that Webb was convicted on the lesser crime of second-degree robbery, with no weapon involved.

Finally, Jackson followed up with a letter to the head of the parole board saying Webb “volunteered information and testified . . without any agreement from the State respecting diminution of the recommendation in his own case.” He asked that Webb be given consideration for his “Cooperation in the murder prosecution without expectation of leniency.”

Despite the high-level support, Webb grew impatient. His request for early release was denied. But Jackson kept filing for clemency on Webb’s behalf. The application included letters from the robbery victim as well as from Attorney-General Batchelor agreeing that Webb had been punished enough.

Batchelor’s letter said that the prosecution wanted to ensure Webb’s cooperation as long as Willingham was still filing appeals. “Any threat to the public by the early release of Webb is far outweighed by the possibility that Willingham might be successful” in his appeals, Batchelor said.

Shortly after Jackson’s election as a judge in 1996, he organised another series of letters to the parole board.

Webb’s clemency request was denied. He was eventually paroled in 2007.

Jackson’s handling of the case is now under investigation by the State Bar of Texas, following a formal complaint of prosecutor misconduct.

In legal documents filed with the State Bar of Texas, the Innocence Project, a New York-based advocacy group, investigating the Willingham case for the past decade, argued that Jackson’s conduct “violated his professional, ethical and constitutional obligations.” The group called for a full investigation of Jackson’s handling of the case, arguing that he should be sanctioned or criminally prosecuted for falsifying official records, withholding evidence from the defence, perjury and obstructing justice. Jackson’s conduct, according to the documents, “violated core principles of the legal profession, and did so with terrible consequences . . . the execution of an innocent man.”

An attorney for Jackson says he expects the Texas bar to notify his client soon that it will pursue formal charges of misconduct. The attorney, Joseph E. Byrne, says Jackson will seek to have the charges heard by a jury, as the bar rules allow.

In his interviews earlier this year with the Innocence Project, Webb said: “I’ve been wanting to come forward with this . . . for a long, long time about certain specific things that no one’s ever known. This has been something that’s pretty much destroyed my life for 22 years.”

He should have added and caused the death of Cameron Todd Willingham.

Poster Child For Why Death Penalty Flawed 2

Recently I wrote about why I consider the death penalty is deeply flawed. When authorities get it totally wrong, they only succeed in killing an innocent human being. This happens to be an important issue right now, because of a case in Texas which is the poster child for why the death penalty doesn’t work. It concerns a man called Cameron Todd Willingham. The evidence now suggests, he was wrongly convicted of murdering his three small children by committing arson.

Here is a brief summary of the case: On December 23, 1991, a fire destroyed the Willingham family home in Corsicana, Texas. The blaze claimed the lives of Willingham’s three daughters: Amber Louisel, who was two, along with one-year-old twins Karmon Diane and Kameron Marie. Willingham, at the time, was a 23-year-old unemployed motor mechanic. He said he woke from a nap, to discover the house filled with smoke. He was unable to find the sleeping children before he managed to escape the flames with minor burns. The so-called expert arson investigators, relied on by the prosecution, concluded that Willingham set fire to a trail of accelerant he laid from the front door of the house to the children’s bedroom. His motive was to cover up allegations that he abused his children. Allegations, I might add, without merit or evidence.

Willingham was executed by lethal injection in 2004.

Sadly what may happen in the future, isn’t going to bring Cameron Todd Willingham back to life but it could win him redemption as far as the law and the State of Texas is concerned. It isn’t great, but it’s better than nothing.

But let’s take up the story again: Soon after the fire, the police began questioning Cameron Todd Willingham.  The two so called arson experts, Fogg and Vasquez were present for the interview, along with a police officer who happened to be working his first arson case. Talk about the blind leading the blind.  Willingham told them his wife Stacy, left the house around 9 on the morning of the fire. to pick up Christmas presents for the children. “After she got out of the driveway, I heard the twins cry, so I got up and gave them a bottle,” Willingham said. The children’s bedroom had a safety gate across the doorway, which Amber, the oldest girl, could climb over but not the twins. Willingham said he and Stacy often let the twins nap on the floor after they drank their bottles. Amber was still in bed, 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 he got up, felt around the floor for a pair of pants, put them on but he could no longer hear his daughter’s voice :“I heard that last ‘Daddy, Daddy’ and never heard her again”, and he yelled, “Oh God— Amber, get out of the house! Get out of the house!’ ” He said he never sensed that Amber was in his room.  Willingham said his only explanation was that she had already lost consciousness by the time he stood up, or she came in after he left, through a second doorway, from the living room. Willingham said that he went down the corridor and tried to reach the children’s bedroom. He said, in the hallway, “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 to the children’s bedroom. He stood up and his hair caught fire. “Oh God, I never felt anything that hot before,” he said of the heat radiating out of the room.

He said after he extinguished the fire in his hair, he got down on the floor and groped in the dark. “I thought I found one of them once,” he said, “but it was a doll.” But he could no longer tolerate the intense heat. “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 his neighbour Diane Barbee and yelled for her to call the Fire Department. After she left, he said he tried, without success, to get back inside the burning house. The investigators asked him if he knew how the fire started. Willingham told them he wasn’t sure, but he thought it must have originated in the children’s bedroom, because that was where he first saw flames.  They were glowing like “bright lights” he said. He and Stacy used three space heaters to warm the house, and one of them was in the children’s bedroom. “I taught Amber not to play with it,” he said, adding that she got punished ” every once in a while for messing with it.” He said he didn’t know if the heater, which had an internal flame, was turned on. Arson investigator Vasquez later testified that when he checked the heater, four days after the fire, it was in the “Off ” position. Willingham believed the fire might have been caused by an electrical fault. When pressed by investigators on whether someone might have a motive to hurt his family, Willingham said 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. 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.”

Recalling Amber, Willlngham said, “To tell you the honest-to-God’s truth, I wish she hadn’t woke me up.”

During the questioning, Vasquez let Fogg take the lead. Finally, Vasquez turned to Willingham and asked a 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. At that moment Vasquez was convinced that Willingham killed his children. If the floor was soaked with liquid accelerant and the fire burned low, as the evidence suggested, Willingham could not have fled the house in the way he described without badly burning his feet. A medical report indicated his feet were untouched by fire.

Willingham kept insisting 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 thought this was impossible. Willingham started the fire as he retreated, first, torching the children’s room, then the hallway, and then, from the porch, the front door. Vasquez said of Willingham, “He told me a story of pure fabrication. . . . He just talked and he talked and all he did was lie.” But if Willingham did this what was the motive?  The children had life-insurance policies, but they amounted to fifteen thousand dollars, and Stacy’s grandfather, who paid for them, was listed as the primary beneficiary. Cameron Todd Willingham was not a particularly nice man. He was a wife beater but Stacy told investigators that even though Willingham hit her he never abused the children—“Our kids were spoiled rotten,” she said, adding, she did not believe  Willingham murdered them.

John Jackson, then the assistant district attorney in Corsicana, was assigned to prosecute  the Willingham case. He later told the Dallas Morning News that he considered Willingham to be “an utterly sociopathic individual” who saw his children as “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.”

Two weeks after the fire, police arrested Cameron Todd Willingham in circumstances that resembled a fictional police TV drama. He was riding in a car with Stacy when they were surrounded by SWAT teams, forcing them to the side of the road. “They pulled guns out like we had just robbed ten banks,” Stacy said. “All we heard was ‘click, click.’ . . . Then they arrested him.”  Willingham was charged with three counts of murder. And since 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, claimed to be personally opposed to capital punishment. “I don’t think it’s effective in deterring criminals,” he would later say. “I just don’t think it works.” He also considered it an expensive drain on the legal and the appeals process. For example it costs, on average, $2.3 million to execute a prisoner in Texas, three times the cost of jailing an offender for forty years. Jackson said. “What’s the recourse if you make a mistake?” Yet his boss, the District Attorney, believed that, “certain people who commit bad enough crimes give up the right to live,” and Jackson came to believe that the abhorrent nature of the crime in the Willingham case, “one of the worst in terms of body count” he had prosecuted, demanded the death penalty.

But shortly before jury selection, Jackson approached Willingham’s attorneys with an extraordinary offer. If their client pleaded guilty, he would get a life sentence. “I was really happy when I thought we might have a deal to avoid the death penalty,” Jackson would later say. As it turned out Willingham’s lawyers were equally pleased. For defence attorneys they had an extraordinary attitude to the case. They shared the prosecution view that Willingham committed the murders and that, if the case went before a jury, he would be convicted and executed. “Everyone thinks defense lawyers must believe their clients are innocent, but that’s seldom true,” one of Willingham’s defence lawyers told New Yorker magazine.  “Most of the time, they’re guilty as sin.” He said 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.”  Only one problem with reaching that conclusion. The science it was based on was, as you will soon discover, completely bogus and without merit.

Willingham’s defence lawyers advised their client to accept the offer, but he refused. The lawyers asked his father and stepmother to speak to him. They were shown photographs of the burned children and told, “Look what your son did. You got to talk him into pleading, or he’s going to be executed.” They visited their son in jail, and although his father did not believe he should plead guilty if he was innocent, Willingham’s stepmother begged him to take the deal. “I just wanted to keep my boy alive,” she said. But Willingham refused. “I ain’t gonna plead to something I didn’t do, especially killing my own kids,” he said. But Willingham’s refusal to accept the deal only confirmed the view in the minds of the prosecution, and his defence lawyers, that he was an unrepentant cold blooded killer. Clearly, Cameron Todd Willingham never stood a chance.

In August, 1992, the trial commenced in downtown Corsicana.  The State’s case, rested almost entirely on the scientific evidence gathered by arson investigators 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 then asked Vasquez what he thought Willingham’s intent was in starting the fire. “To kill the little girls,” he said. The defense tried to find a fire expert to counter Vasquez and Fogg’s testimony, but the one expert they contacted agreed 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. The Defence Attorneys later admitted Willingham wanted to testify, but they thought he would make a bad witness. The trial ended after two days.

During his closing arguments, Jackson told the jury the puddle configurations and pour patterns were Willingham’s inadvertent“confession,” burned into the floor. Showing a Bible, salvaged from the fire, Jackson repeated the words 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 took less than an hour to find him guilty. As Vasquez put it, “The fire does not lie.” But he should have added arson investigators can make big, big mistakes.

By 2004,  Willingham had a new and much better legal team who had managed to persuade  a real, expert, arson forensic investigator to become involved in the case. This was not someone purporting to be an expert, he was and is the real deal. His name is Doctor Gerald Hurst, an acclaimed scientist and fire investigator He received a file describing all the evidence of arson gathered in  the Willingham case and agreed to look at it pro bono.

Hurst opened the file in the basement of his house in Austin, which served as his laboratory and office. Hurst was child prodigy, raised by a sharecropper during the Great Depression, He would scour junk yards, collecting magnets,copper wire and other bits and pieces in order to build radios and other amazing stuff. In the early 1960s, he received a Ph.D. in chemistry from Cambridge University, where he started to experiment with explosive chemicals, like fluorine even blowing up his own lab. Later, he worked as the chief scientist on secret weapons programs for several American companies, designing rockets and deadly fire bombs. He helped patent what has been described, as the world’s most powerful non nuclear explosive, an Astrolite bomb. He experimented with toxins so lethal,  a fraction of a drop is capable of rotting human flesh. When he gave up working in the defence industry, his extraordinary knowledge of fire and explosives, made him a sought after expert witness in determining the cause of a fire. Hurst found himself devoting a huge chunk of his time to criminal-arson cases, and, when he became exposed to the methods of local and state fire investigators, he was shocked and horrified by what he saw.

He discovered many arson investigators, only possessed a high-school education qualification. In most states, in order to be certified, arson investigators underwent a forty-hour course on fire investigation, and had to pass a written exam. In most cases, almost all of the investigator’s training came from on the job learning, taught to them by “old-school investigators” in the field, who passed down collective wisdom about the telltale signs of arson, even though a study in 1977 warned there was nothing in “the scientific literature to substantiate the validity” of these theories. In 1992, the National Fire Protection Association, which promotes fire prevention and safety, published its first scientifically based guidelines for arson investigation. But many arson investigators  still believed that what they did was more art than science—a blend of experience and intuition which was a nonsense approach.  “People investigated fire largely with a flat earth approach,” Hurst said. “It looks like arson—therefore, it’s arson. My view is you have to have a scientific basis.Otherwise, it’s no different than witch-hunting.” He might have been talking about the Willingham case.

Ironically, Doctor Gerald Hurst received the files on the  Willingham case only a few weeks before Willingham was executed. As he looked through the case records, a statement by Manuel Vasquez, the state deputy fire marshal, almost knocked him over. Vasquez claimed to have investigated between 12 and  15 hundred fires and “most all of them” were arson. This was an unbelievably high estimate. Statistics show the Texas State Fire Marshals Office typically found arson in only fifty per cent of cases. Hurst also took issue with Vasquez’s claim that the Willingham fire “burned fast and hot” because of a liquid accelerant. The claim that a flammable or combustible liquid caused flames to reach higher temperatures, was frequently repeated in court by arson investigators for decades even though this theory was rubbish. Scientific experiments had proved that wood and gasoline-fuelled fires, burn at roughly the same temperature.

Then Hurst set about demolishing the arson conclusions reached by Vasquez and Fogg in the Willingham case. The two investigators claimed that proof of arson could be found in the fact that the front door’s aluminium threshold melted. “The only thing that can cause that to react, is an accelerant,” Vasquez had said. But Hurst wasn’t buying it.  He knew scientifically that a natural-wood fire can reach temperatures as high as two thousand degrees Fahrenheit, far hotter than the melting point of aluminium alloy. Hurst discovered that like many other arson investigators, Vasquez and Fogg mistakenly assumed that wood charring underneath the aluminium threshold was evidence, as Vasquez put it of “a liquid accelerant flowed underneath and burned.” Hurst then conducted many different experiments to show that this type of charring was caused by the aluminum conducting so much heat. In fact, when liquid accelerant is poured under a threshold, a fire will extinguish itself, because of a lack of oxygen. Other scientists reached the same conclusion.

Hurst then turned to Fogg and Vasquez’s claim that the “brown stains” on Willingham’s front porch was evidence of “liquid accelerant,” which did not have time to soak into the concrete. Hurst had previously performed a test in his garage, where he poured charcoal-lighter fluid on the concrete floor, and ignited it. When the fire was extinguished, there were no brown stains, only soot smudges.

Hurst ran the same experiment many times, with different kinds of liquid accelerants, and the result was always the same. Brown stains were common in fires; but he concluded they were usually composed of rust or gunk from charred debris, mixed with water from fire hoses.

Another crucial piece of evidence implicating Willingham was the “crazed glass” that Vasquez claimed was formed by the rapid heating from a fire fuelled with liquid accelerant. Fogg and Vasquez seemingly were unaware that in November 1991, a team of fire investigators inspected fifty houses in the hills of Oakland, California, ravaged by brush fires. In a dozen houses, the investigators discovered crazed glass, even though a liquid accelerant was not involved. Most of these houses were on the periphery of the fire, where firefighters shot streams of water. As the investigators later wrote in a published study, they were of the opinion that the fracturing was induced by rapid cooling, rather than sudden heating. Thermal shock caused the glass to contract so rapidly it became disjointed. The investigators then tested the theory in a laboratory. When they heated glass, nothing happened. But every time they applied water to the heated glass, the intricate patterns appeared. Hurst said he saw the same phenomenon when he blowtorched and then cooled glass during his research at Cambridge University. In his report, on the Willingham case, Hurst wrote that Vasquez and Fogg’s conclusion on the crazed glass was nothing more than an “old wives’ tale.” Hurst then took on the most important arson evidence against Willingham, the burn trail, the pour patterns and puddle configurations, and other burn marks indicating the fire had multiple points of origin.  There was also the positive test for mineral spirits discovered by the front door, and Willingham’s statement that he fled the house without burning his bare feet.

As Hurst continued to read through the case files, he discovered that Willingham and his neighbours described the windows in front of the house suddenly exploding and flames roaring through. Hurst then looked at a floor plan of Willingham’s house, drawn by Vasquez, illustrating all of the pour patterns and puddle configurations. Hurst traced along the Vasquez’s diagram. The burn trail had gone from the children’s bedroom, turned right in the hallway, and headed out the front door. John Jackson, the prosecutor, said that the fire path was so “bizarre” it could only have been caused by liquid accelerant. But Hurst found it was a natural product of the dynamics of fire. Willingham fled through the front door, and the fire simply followed the ventilation path, toward the opening.

Similarly, when Willingham broke the windows in the children’s bedroom, flames shot outward. Hurst said Vasquez and Fogg considered it impossible for Willingham to run down the burning hallway without scorching his bare feet. But Hurst found the pour patterns and puddle configurations, were consistent with Willingham’s explanation of events. When Willingham exited his bedroom, the hallway was not on fire; the flames were contained within the children’s bedroom, where he saw the “bright lights” along the ceiling.

Vasquez made a videotape of the crime scene, and Hurst looked at footage of the burn trail. He said in his report even after repeated viewings, he could not find the three points of fire origin, as Vasquez had. But, it turns out, the other investigator, Fogg,  disagreed with Vasquez on this evidence, but remained silent because nobody from the prosecution or the defence ever asked for his opinion on the subject. After Hurst reviewed the infamous Fogg and Vasquez’s list of more than twenty arson indicators, he believed only one had any potential validity: the positive test for mineral spirits near the front door. But why did fire investigators only obtain a positive reading in that location? According to Fogg and Vasquez, Willingham poured accelerant throughout the children’s bedroom and down the hallway. Officials conducted extensive tests in these areas, including all the pour patterns and puddle configurations, and found no evidence of accelerant.

In any case, Hurst said he could not believe Willingham would pour accelerant on the front porch of the house, in clear view of the neighbours. Then Hurst noticed something else, a photograph of the front porch taken before the fire, which was included in the file of evidence. On the tiny porch, was a charcoal grill, where the family cooked barbecue. Court testimony from witnesses confirmed the grill, along with a container of lighter fluid, burned when the fire raged onto the porch. By the time Vasquez inspected the house, the grill had been removed from the porch, during cleanup. And although he referred to the container of lighter fluid in his report, he made no mention of the barbecue grill. At the trial, he insisted he was never told of the grill’s placement. Other authorities were aware of the grill but dismissed it as irrelevant. Hurst, however, was convinced he had solved the mystery. He determined that when firefighters blasted the porch with water, they had, in all probability, spread charcoal-lighter fluid from the melted container.

Hurst said, it was impossible to pinpoint the exact cause of the blaze without visiting the scene. But, based on the evidence, he concluded it was an accidental fire, caused most likely by the space heater or faulty electrical wiring. Hurst concluded  there was no evidence of arson, and a man who “ already lost his three children and spent twelve years in jail was about to be executed based on “junk science.”

The fifteen members of the Board of Pardons and Paroles, which reviews applications for clemency, was sent Hurst’s report, but they still denied his application.  A group called  The Innocence Project which campaigns against the death penalty later took up the Willingham case. They obtained, through Freedom of Information, all the records from the governor’s office, and the Pardons and Paroles board, relating to the Hurst 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,” The Innocence Project said. “The only reasonable conclusion is that the governor’s office and the Board of Pardons and Paroles ignored scientific evidence.”

After his death, Willingham’s parents were finally 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 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. Two journalists from the Chicago Tribune, published an investigative series after learning of the Hurst report, The journalists then asked three fire experts, to examine the original investigation. The experts concurred with the Hurst report and in an independent review of the arson evidence in the Willingham case, concluded that “each and every one” of the indicators of arson were “scientifically proven to be invalid.”

In 2005, Texas established a government commission to investigate allegations of error and misconduct by arson investigators. The first cases are being reviewed by the commission, including the Willingham case. In mid-August, 2009, a noted fire scientist, Craig Beyler, hired by the commission, completed his investigation. In his report, he concluded that investigators in the Willingham case had no scientific basis for claiming the fire was arson, ignored evidence that contradicted their theory, had no comprehension of fire dynamics, relied on discredited old wives tales, and failed to eliminate potential accidental or alternative causes of the fire. He said the Vasquez approach seemed to deny “rational reasoning” and was more “characteristic of mystics or psychics” in other words arrant nonsense. Beyler determined that the investigation not only violated scientific standards of today “but even of the time period” of the fire. The commission is reviewing his findings, and will release its own report despite the efforts of Texas Governor Perry to reconstitute its members. There is still a chance, that Texas could become the first state to acknowledge, officially, that it carried out the “execution of a legally and factually innocent person.”  In part three of the series we will examine the latest evidence that may result in a posthumous pardon for Cameron Todd Willingham.

Poster Child For Why Death Penalty Fatally Flawed

Just for the record. I am not in favor of the death penalty. It’s not that I don’t think people guilty of heinous crimes, shouldn’t pay the ultimate price. The problem I have is when the system, and a jury and a prosecutor, get it completely wrong. It’s been known to happen. And when it does, there’s no turning back. You cannot undo what has been done. Therein lies the problem. Sorry, but the way I see it, if you can’t guarantee that every person, who receives the death penalty, was one hundred percent guilty of the worst crime imaginable, then I’m sorry to say as a punishment it ain’t worth having. If you get it wrong, all you’ve done is kill an innocent human being. And when that happens, we are talking about not one but two equally abhorrent crimes. The case I am about to recite is the poster child for why the death penalty doesn’t work. In fact, this case is so outrageous and so compelling I want to deconstruct and examine the sum of its many parts. You can’t really do justice to this story with just one blog post. So this is the beginning of a series. To misquote that infamous Bette Davis line, fasten your seat belts. It’s going to be a bumpy ride.

The good old State of Texas, which has no hesitation whatsoever about using the death penalty, executed a man called Cameron Todd Willingham by lethal injection in 2004.

Here is a brief summary of the case: On December 23, 1991, a fire destroyed the Willingham family home in Corsicana, Texas. The blaze claimed the lives of Willingham’s three daughters: Amber Louisel, who was two, along with one-year-old twins Karmon Diane and Kameron Marie. Willingham, at the time, was a 23-year-old unemployed motor mechanic. He said he woke from a nap to discover the house filled with smoke. He was unable to find the sleeping children before he managed to escape the flames with minor burns.

Willingham’s wife, Stacy Kuykendall, was not home at the time. Prosecutors claim he deliberately started the fire to cover up allegations that he abused his children. Willingham was convicted of murdering his three daughters by arson in 1992 and was executed 12 years later. He claimed he was innocent right up until his death, using his last words to say: “The only statement I want to make is that I am an innocent man convicted of a crime I did not commit.” Actually he said a bit more than that: “ I have been persecuted for 12 years for something I did not do. From God’s dust I came and to dust I will return.”

Of course, guilty people can still claim they are innocent right up until the time they take their last breath. Willingham was offered a plea deal where he could avoid the death penalty. All he had to do was say he did it. But he refused. Again I draw no great significance from that either. What was always going to ultimately decide his guilt or innocence was the evidence, more specifically the forensic evidence. And that is precisely where this case begins to fatally unravel.

The fire moved quickly through the house, a one-story weatherboard building in a poor neighbourhood. Flames spread along the walls, through doorways, blistering paint, tiles and furniture. Smoke rose up to the ceiling, then curled downward, invading each room and through crevices in the windows.

Buffie Barbee, eleven years old, lived two houses down from the Willinghams. She 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 to see the smoldering house and Cameron Todd Willingham standing on the front porch, his bare chest blackened with soot, his hair and eyelids singed. He screamed, “My babies are burning up!” His three children, one-year-old twin girls, and a two-year-old were trapped inside. Willingham told the Barbees to call the Fire Department, and while Diane raced down the street to get help he found an object to break the children’s bedroom window but fire lashed through the hole. He broke another window and flames burst through that as well. He retreated to the backyard, 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.”

Within minutes, the first firemen arrived, and Willingham approached them, shouting his children were trapped inside the burning house. He grew more hysterical, and a police chaplain named George Monaghan led him to the back of a fire truck to calm him down. Willingham explained his wife, Stacy, left the house earlier that morning, and he was woken from sleep by Amber screaming, “Daddy! Daddy!”“My little girl was trying to wake me up and tell me about the fire,”he said “I couldn’t get my babies out.” While he was talking, a fireman emerged from the house, carrying an unconscious but still alive Amber. As she was given C.P.R., Willingham, twenty-three-years old and physically strong, ran to see her, then suddenly headed toward the children’s bedroom. Monaghan and another man restrained him. “We had to wrestle with him and then handcuff him, for his and our protection,” Monaghan said. “I received a black eye.” One of the first firemen at the scene told investigators, at an earlier point, he also restrained Willingham. “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 Amber, who was found in the master bedroom, died from smoke inhalation. Kameron and Karmon were discovered lying on the children’s bedroom floor, their bodies severely burned but they too, died from smoke inhalation. A community collection helped the Willingham’s pay for the funerals of their children.

Fire investigators, tried to determine the cause of the tragedy. 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,” he said.

Douglas Fogg, the assistant fire chief in Corsicana, conducted the initial investigation. He’d been fighting fires or what he calls “the beast”—for more than twenty years, and was a certified arson investigator. “You learn that fire talks to you,” Fogg would later say. He was soon joined by one of the leading arson investigators in Texas, a deputy fire marshal called Manuel Vasquez who had an extremely high opinion of his own abilities. He would frequently say: “Fire does not destroy evidence—it creates it.” And: “The fire tells the story. I am just the interpreter.” Vasquez was convinced there was very little he didn’t know about the crime of arson. 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’ fire gutted house four days after the blaze. Following the investigators protocol, they moved from the least burned areas to the worst. “It is a systematic method,” Vasquez later testified. “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 before entering the burned out building. In the kitchen, Vasquez and Fogg found only smoke and heat damage—a sign that this was not the source of the fire. In the master bedroom, where Amber’s body was found, most of the damage was also from smoke and heat, which suggested that the fire began down the hallway. The two arson investigators noticed deep charring along the base of the walls. Because hot gases from the burning become buoyant, flames will ordinarily burn upward. But Vasquez and Fogg discovered that the fire burned low down, causing peculiar char patterns on the floor, shaped like puddles. Vasquez followed the “burn trailer”—the path burned by the fire—which led from the hallway into the children’s bedroom. According to arson experts, flammable or combustible liquid doused on a floor can cause a fire to concentrate in these kinds of pockets, which is why investigators describe them as “pour patterns” or “puddle configurations.” In the Willingham fire, the floor had some of the deepest burn marks and Vasquez concluded it was hotter than the ceiling. Given that heat rises, this was, in his words, “not normal.” Fogg examined a piece of glass from one of the broken windows. It contained a spiderweb-like pattern—which fire investigators call “crazed glass.” Forensic experts describe the effect as a key indicator that the fire burned “fast and hot,” meaning it was, more than likely, fuelled by a liquid accelerant, causing the glass to fracture.

The men then looked again at what appeared to be a distinct burn trail through the house. It went from the children’s bedroom, into the corridor, then turned to the right and out the front door. Even the wood under the door’s aluminum frame was charred. On the concrete floor of the front porch, Vasquez and Fogg noticed something else they thought was unusual: brown stains, which, they reported, were consistent with the presence of an accelerant.  Vasquez identified three places where, in his opinion, the fire originated: in the hallway, in the children’s bedroom, and at the front door. Vasquez would later testify that multiple origins pointed to one conclusion: the fire was “intentionally set by human hands.” Both investigators claimed to have a clear vision of what happened. Someone had poured liquid accelerant throughout the children’s room, then poured more along the adjoining hallway and out the front door, creating a “fire barrier” that stopped anyone from escaping.

The investigators collected samples of burned materials from the house and sent them to a laboratory that could detect the presence of liquid accelerant. The lab’s chemist reported that one of the samples, taken near the front door, contained evidence of “mineral spirits,” a substance often found in charcoal-lighter fluid.  The fire was now considered to be arson and this was a triple homicide. Cameron Todd Willingham—the only person, other than the victims, inside the house at the time of the fire—became the prime suspect.

But as you will learn in part two of this story, looks can be very deceiving and what may seem like damning evidence can suddenly become discredited by the simplest of explanations.

Texas Executes Intellectually Disabled

Driving in the United States, I saw a bumper sticker that read: Texas. It’s like a whole other country. And judging by what has just occurred, the Lone Star State is living up to the billing. It’s certainly another country when it comes to recognising, or in this case not recognising, some of the rulings in the United States Supreme Court, especially when those rulings involve the death penalty for capital crimes such as murder. The good people of Texas have just put a convicted killer to death by lethal injection after he spent almost 20 years in prison on death row. So what’s the big deal? The prisoner, a man called Robert Ladd, had an IQ of 67, which would constitute a legal mental disability in most US states, making him ineligible for execution, but not in Texas.

Now, before anyone gets on some high moral horse and starts galloping in my direction, I am not here to defend Robert Ladd. There could be no defence to the crimes he committed apart from intellectual impairment. He strangled a woman, 38-year-old Vicki Ann Garner, beat her with a hammer and then set fire to her body. When he was arrested in 1996 for her slaying, Ladd had been on parole for about four years after serving roughly a third of a 40 year prison term for the murder of a Dallas woman and her two children. How and why he received parole is an interesting question that authorities are yet to answer.  Ladd had pleaded guilty to all three murders. He deserved to be incarcerated for what he did. In all probability locked up for the rest of his life. No-one would seriously suggest otherwise. But did he deserve the death penalty? That is an interesting question and it’s where Texas goes it alone, earning the dubious title of America’s most active death penalty state. Texas put Ladd to death by lethal injection having deemed him to be not sufficiently disabled or mentally impaired, according to its own bizarre criteria for the condition. But before I discuss the Texan criteria for mental disability, its important to understand what the United States Supreme Court has said about intellectual disability and the death penalty.

The death of Ladd has exposed a flaw in the normally stringent safeguards imposed by the federal courts on States in the United States that carry out the death penalty. Although the States are generally allowed to set their own standards, the US Supreme Court has twice ruled on the issue of intellectual disability in order to set what it considers to be the parameters for humane and civilised conduct. In the rulings – in 2002 and last year – the Supreme Court banned the execution of people with “mental retardation” on the grounds that it was cruel and unusual punishment, prohibited by the eighth amendment of the US constitution. It also said that death penalty states had to conform to standards set by medical science and not impose their own arbitrary definitions of mental disability. Clearly someone forget to point that out to the good old state of Texas.

The Texas definition is bizarre to put it mildly. Many would be familiar with the John Steinbeck 1937 novella, Of Mice and Men. It is a classic piece of American literature. But in Texas the book is more than just a classic, it has legal status. Under what are known as “Briseno factors”, the State establishes the profile of an individual who ordinary Texans would agree was intellectually disabled. It points to Lennie Small, the lumbering and childlike character in John Steinbeck’s book, identifying him as the legal yardstick. In other words, the Texas definition of intellectual disability has to match the degree of mental impairment depicted by a character in a fictional novella.

I’m sorry but that is crazy.

“This case is indeed stranger than fiction. said Brian Stull, senior staff attorney with the American Civil Liberties Union’s Capital Punishment Project and Ladd’s attorney. ” Anywhere else in the country, Mr. Ladd’s IQ of 67 would have meant a life sentence, not death.  But the Texas courts insist on severely misjudging his intellectual capacity, relying on standards for gauging intelligence crafted from ‘Of Mice and Men’ and other sources that have nothing to do with science or medicine. Robert Ladd’s fate shouldn’t depend on a novella.”

Ladd came within hours of being executed by lethal injection in 2003. Finally, a Federal Court agreed to hear evidence about Ladd’s juvenile record that suggested he was mentally impaired. But that appeal was subsequently denied and the Supreme Court last year refused an application to review Ladd’s case. The courts no longer accept juvenile records as an argument in favour of intellectual impairment. His Attorneys made a renewed push for clemency, using similar arguments as his execution date approached. “Ladd’s deficits are well documented, debilitating and significant,” Stull told the court.

But despite the pleas on his behalf Ladd was executed by the State of Texas. His final statement was to his victim’s sister. telling her he was “really, really sorry. I really, really hope and pray you don’t have hatred in your heart,” he said, adding that he didn’t think she could have closure but hoped she could find peace. “A revenge death won’t get you anything,” he said. Then Ladd told the warden: “Let’s ride.” The ACLU said the execution of a mentally impaired prisoner proved that “we are in the midst of a complete systems failure in terms of honouring the constitutional protections the Supreme Court ordered for intellectually disabled people.”

The writer, John Steinbeck once said, Texas was a state of mind. But, if the State of Texas continues to use one of his characters, as a legal benchmark for intellectual disability, out of its mind might have been a more accurate description.