by Matt Clarke

Texas Governor Rick Perry caused considerable controversy on Sept. 30, 2009 when he replaced three members of the Texas Forensic Science Commission, just two days before the commission’s hearing on a report that an innocent man may have been executed during Perry’s tenure. As a result the hearing was postponed.

According to Cameron Todd Willingham, a 23-year-old unemployed mechanic living in Corsicana, Texas, he woke up on the morning of December 23, 1991 to find his house on fire. He received minor burns but made it out alive. His three infant daughters did not. Local investigators concluded the fire was caused by arson, and the Texas State Fire Marshal’s Office agreed. Willingham was the only suspect; he was charged with murder, convicted, sentenced to death and executed on February 17, 2004. He proclaimed his innocence with his last words.

It was later revealed that shortly before Willingham was executed, Governor Perry had received a fax from Willingham’s attorney containing an arson expert’s report. The report, by Austin, Texas fire science expert Gerald Hurst, who holds a doctorate in chemistry from Cambridge University, stated that the investigators “made errors” and used discredited techniques to determine whether the fire was due to arson.

Hurst had previously debunked arson “evidence” in a Texas woman’s homicide case, and would later help get Ernest Ray Willis, an innocent Texas man convicted of an arson-murder, off of death row in October 2004. The evidence in the Willis case was very similar to that in Willingham’s. But Hurst was unable to help Willingham establish his innocence because Governor Perry declined to stay the execution.

In response to the Willingham case and other convictions based on questionable forensic evidence, the Texas legislature formed the Texas Forensic Science Commission in 2005.
The commission’s mandate was to investigate the soundness of the science used to obtain convictions and find ways to improve forensic methods.

State lawmakers designed the commission to represent all interested parties: prosecutors, defense attorneys and forensic scientists. Governor Perry appointed Fort Worth prosecutor Alan Levy, Integrated Forensic Laboratories pathologist Aliece Watts and criminal defense attorney Sam Bassett to the 8-member commission, with Bassett as chairman.

Other members were appointed by the state attorney general and lieutenant governor.

The Innocence Project submitted the Willingham case to the commission for investigation in 2006, after an independent review concluded that all of the evidence pointing to arson had been “scientifically proven to be invalid.”

The commission hired nationally-renowned Maryland fire expert Craig Beyler to investigate the Willingham case. The results of Beyler’s August 2009 report – which was highly critical of the arson evidence and questioned whether the fire had been deliberately set – were leaked to the media. Beyler found that the methods used by one of the investigators in Willingham’s case were contrary to “rational reasoning” and “characteristic of mystics or psychics.”

Two days before the commission was scheduled to hold a public hearing on Beyler’s report, Governor Perry replaced Bassett, Levy and Watts. The new commission chairman appointed by Perry, tough-on-crime Williamson County district attorney John Bradley, was not known for taking an interest in claims of innocence. For example, he had opposed defense-funded DNA testing of a bloody bandanna found near the site of a woman’s murder, even though scientific analysis of some of the forensic evidence used to support the homicide prosecution of the woman’s husband had been discredited.

Bradley’s first official act as chairman was to cancel the Willingham hearing. He then formed a subcommittee to study the Willingham case; the subcommittee was small enough that it did not have to comply with open meeting laws, and therefore met behind closed doors.

Further, Bradley tried to limit the commission’s jurisdiction, claiming in an unsigned memo that the commissioners lacked the “discretion or power” to investigate any forensic evidence that did not originate from a laboratory accredited by the state Department of Public Safety (DPS). The DPS did not begin accrediting labs until 2003, which would have excluded the Willingham case.

Sam Bassett, the commission’s former chairman, revealed that Governor Perry’s office had been trying to influence the investigation of the Willingham case from an early stage.
He said he was twice called to meetings with Perry’s then-General Counsel David Cabrales and Deputy General Counsel Mary Anne Wiley. At one of the meetings, they told Bassett that they were displeased with the direction of the Willingham investigation. Afterwards, a general counsel staff member began attending the commission hearings.

“I was surprised that they were involving themselves in the commission’s decision-making,” said Bassett. “I did feel some pressure from them, yes. There’s no question about that.”

Despite precedent from the days of former Texas governor George W. Bush which held that recommendations from the governor’s staff regarding executions were public records, Perry resisted requests for his staff’s recommendations related to the Willingham execution. Further, Governor Perry has said that his replacement of the commission members was “business as usual,” as their terms were expiring.

Former Texas governor Mark White, who was famous for appearing in a campaign ad walking in front of oversized photos of prisoners executed on his watch while bragging about his strong pro-death penalty stance, criticized Perry’s interference in the commission’s investigation. Several days later, White, the staunchest of pro-death penalty Texas governors and a former state attorney general, came out against capital punishment, citing the probability that an innocent man had been executed and the impossibility of preventing such injustices from occurring in the future.

“There is a very strong case to be made for a review of our death penalty statutes and [to] even look at the possibility of having life without parole so we don’t look up one day and determine that we as the state of Texas have executed someone who is in fact innocent,” White said.

The New Yorker magazine published a detailed 16,000-word exposé on the Willingham case on September 7, 2009 that completely discredited the evidence used to convict Willingham, based on the work of arson expert Gerald Hurst and the scathing report of the commission’s expert, Craig Beyler.

In October 2009, more than 400 Texas citizens sent a letter to commission chairman John Bradley, asking that the commission continue its investigation into the Willingham case. Fifteen former Texas prisoners who had been exonerated were among the signatories to the letter.

During a commission meeting on July 23, 2010, Bradley’s efforts to restrict the commission’s jurisdiction were rejected; perhaps realizing he had gone too far, Bradley voted against his own recommendation, saying it was “merely for reference.” More importantly, in a preliminary report the commission found that “flawed science” was used in Willingham’s case but that investigators were not negligent and did not engage in misconduct because they relied on standards and techniques that were acceptable at the time. New fire investigation guidelines, referred to as NFPA 921, were developed by the National Fire Protection Association in 1992, a year after Willingham was convicted.

“Even though there may not have been any malice or intent by fire investigators about not being informed on current standards, that doesn’t excuse the fact that based on this misinformation, Cameron Todd Willingham was executed and that can’t be corrected,” said Patricia Cox, Willingham’s cousin.

The State Fire Marshal’s Office stood behind its determination that Willingham had started the fire that killed his children, rejecting the opinions of other arson experts and the commission’s finding that investigators had relied on flawed science.

Governor Perry, who apparently went out of his way to influence the Texas Forensic Science Commission’s investigation into a potentially innocent prisoner, has refused to back down from his decision to allow Willingham’s 2004 execution to proceed. “I am familiar with the latter-day supposed experts on the arson side of it,” he remarked. Of course, given the political ramifications if the governor admitted that he let an innocent man be executed, what else could he say?

Perhaps what Texas state senator Rodney Ellis said: “We hope the Texas Forensic Science Commission will stop playing politics with the Texas justice system and get to the important work it was charged to do – ensuring we have reliable evidence in our courtrooms, and a fair and accurate justice system the people of Texas can have faith protects the innocent and convicts the guilty.”

Although the commission’s final report will come too late to help Willingham, around 750 other Texas prisoners are serving time for arson-related charges – and some of those convictions relied on the same flawed forensic methods that have been criticized in the Willingham case.

The commission met to discuss the Willingham investigation on September 17, 2010, but Bradley called a closed session to seek legal advice. Commissioners Sarah Kerrigan and Garry Adams reportedly rejected Bradley’s efforts to end the inquiry into the Willingham case. The commission will next address the case on November 19, 2010; Bradley said he doubted that meeting would be “anything more than a political farce.”

Sources: Austin American-Statesman, Houston Chronicle, Dallas Morning News, www.gritsforbreakfast.blogspot.com, Fort Worth Star-Telegram, Chicago Tribune, www.innocenceproject.org, www.time.com, http://camerontoddwillingham.com, The New Yorker, www.mysanantonio.com, Texas Tribune