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.