CRIMINAL JUSTICE
Opportunities missed in fatal Texas arson case
House fire left key players wondering what might have been done differently.
By W. Gardner Selby
AMERICAN-STATESMAN STAFF
Sunday, October 18, 2009
CORSICANA — At a glance, the wood-frame house on West 11th Street looks as if it's still recovering from the Dec. 23, 1991, fire that asphyxiated three young girls and eventually led to the execution of their father, dark turns that scarcely drew attention beyond Navarro County during the 12 years that passed between the events.
Part of the wall above the front window appears blackened. Inside, a piece of cardboard leans against the window. Small plastic bottles of motor oil rest on the concrete porch. With a truck parked in the driveway, the house appears to be occupied, little changed.
 Cameron Todd Willingham was put to death in 2004 after a delay was denied.  W. Gardner Selby/AMERICAN-STATESMAN Prosecutor John Jackson questions whether Texas' procedure for reviewing newly discovered evidence before an execution is sufficient.  W. Gardner Selby/AMERICAN-STATESMAN The house in Corsicana where Cameron Todd Willingham's three children died Dec. 23, 1991, still stands. An Austin arson expert's report questioning the original investigation was not acted on. |
But lately, a national storm has swirled over what Cameron Todd Willingham did there early that morning. Expert reviews of the original investigation suggest the fire was not intentionally set, meaning the state could have killed an innocent man.
That has cast scrutiny on the courts and Gov. Rick Perry for not delaying the execution in February 2004 after doubts were raised about the fire's origin.
Often obscured in the storm are the elements of the state's case against Willingham, including tests suggesting a fire accelerant was poured in the house (later disputed by expert reviewers); testimony from a jailhouse informant who said Willingham told him he set the fire; and Willingham's decision to move his car during the fire in contrast to his failure to get the children out of the house.
Sometimes overlooked, too: Both the lawyer who prosecuted Willingham for capital murder and the attorney who defended him at trial insist that Willingham coldly poured lighter fluid on the floors of the house to start the fire before walking outdoors without saving anyone else — including his 2-year-old daughter, Amber, whose body was found wrapped in a sheet in his bed.
Twin 1-year-olds Karmon and Kameron were found in another bedroom. At the time, their mother, Stacy, was away.
The defense counsel, David Martin, said: "Of course, it doesn't make any sense. The crime is so horrible, so horrendous, so outrageous, that a reasonable mind could never fathom why it would occur."
John Jackson, the prosecutor in the case, has aired no doubts about Willingham's guilt. But in an interview last week he said that his experience, in about 10 capital murder cases as a prosecutor and judge, makes him wonder if Texas has an "appropriate means of last-minute review of newly discovered evidence."
"The way things are done in Texas, I'm not completely certain that all last-minute requests for either clemency or stay of execution get the scrutiny they deserve," he said.
Jackson said he's unsure what precisely would work, but he suggested an official or commission might be entrusted with reviewing late claims of new evidence, even taking testimony if appropriate.
"If there had been a stay of execution in this case, that would have allowed a panel of disinterested experts to look at the evidence. We could have figured out whether the guy needed another trial or not. Maybe," he said.
Jackson cautioned that he believes Willingham's conviction would have been upheld even after closer review. But, he said, "perhaps we wouldn't have as much controversy now."
Perry, who routinely fields last-minute appeals from inmates, has aired no qualms about the review system. His spokeswoman, Allison Castle, said, "Texas has an appropriate means through our court system of reviewing cases."
Willingham lost in every court that heard his case.
In August 1992, a Navarro County jury convicted and sentenced Willingham after hearing testimony from a state fire marshal that Willingham had set the fire. The prosecution's case had opened with a jailhouse informant saying Willingham confessed to him. Willingham didn't testify, saying in court: "I don't think that I should have to. I don't feel that I need to."
About four years later, after Willingham's direct appeal of his conviction proved unsuccessful, Walter Reaves of Waco took on his additional appeals through state and federal courts. The lawyer felt that Willingham's original attorney did a poor job defending him but soon confessed to his client that he wasn't making much headway.
Reaves said last week that he ran the prosecution's arson report past an expert in the Dallas area who found nothing questionable. Separately, the jailhouse informant stood by his recap of Willingham's confession.
Help came from a family member fearful that her cousin had been railroaded.
In September 2002, Patricia Ann Cox, an Ardmore, Okla., registered nurse, wrote to an Austin arson expert, Gerald Hurst, asking him to look into what she said last week may have been a "grave injustice." Cox said she'd learned of Hurst from a TV program on another case. She finally reached him by phone shortly before Willingham's execution date: Feb. 17, 2004.
Hurst rushed to review the initial fire marshal's report and wrote a short report stating that in light of subsequent advances in fire investigation standards, most of the marshal's conclusions would be considered invalid.
Hurst found fault in various conclusions, including about lighter fluid being poured in the house, burn patterns and the "old wives' tale" that crazed glass indicated the use of a fire accelerant.
Time wasn't in the convict's favor.
Hurst's response wasn't completed in time for Willingham's appeal for a 90-day reprieve from the Texas Board of Pardons and Paroles, filed Jan. 26, 2004, nor before Reaves sought a 30-day reprieve from Perry that Feb. 12.
But Reaves referred to Hurst's analysis, submitted in court the next day, six paragraphs into his 12-paragraph letter to Perry, stating: "Dr. Hurst's opinion is that the fire was not intentionally set. ... This is something we have just come across, and I think it deserves further inquiry."
A state District Court, the Texas Court of Criminal Appeals and federal courts didn't buy into the appeals or Hurst's report. Significantly, the 5th U.S. Circuit Court of Appeals said Willingham failed to show that the expert opinion being offered could not have been discovered previously "through the exercise of due diligence."
Also, the Board of Pardons and Paroles recommended against clemency, leaving Perry with the option of granting a 30-day reprieve or letting the execution proceed.
Castle confirmed that the lawyer advising Perry on the Willingham case didn't field a copy of Hurst's report until late on the execution day.
At the request of Perry's office, the report was faxed by Attorney General Greg Abbott's office to Mike Schofield, an assistant general counsel for the governor, at 4:52 p.m., according to the fax cover sheet, which became public via a 2006 open-records request by the Innocence Project, a New York group.
The report's arrival — 88 minutes before Willingham died from lethal injection at 6:20 p.m. — has fueled speculation that Hurst's report drew very slight consideration by Perry, who had already huddled with aides on Willingham's case at 11:30 a.m. that day. Perry didn't have any official events through that afternoon and evening, according to his schedule, though a newspaper reported then that Perry was in San Antonio that afternoon to endorse a candidate for the Texas Supreme Court.
Castle said Friday that Perry was briefed on the report after its late-afternoon delivery. "The governor, before this execution went forth, was briefed on all the facts in this case," Castle said, and he aligned with all the courts that had upheld the conviction.
Perry's office declined requests for interviews with Perry, Schofield or other aides involved in clemency reviews.
Willingham's cousin, Cox, offered her own notes as an indication that Schofield was earlier aware of Hurst's report.
Specifically, Cox said she was assured by Schofield on Feb. 9, 2004, that he would present the still-being-finished report to Perry.
Her notes state that Schofield said he planned to brief Perry on Feb. 16 "at which time he would decide if a 30-day reprieve would be granted based on new discovered evidence, that being a report determining no evidence of arson."
According to the notes, Cox called Schofield on Feb. 18 to ask if the governor had reviewed the "newly discovered evidence." The notes state she was "assured that (Perry) did, however, he felt that given the amount of time that had elapsed since conviction, granting a 30-day stay would only prolong the Ultimate outcome."
Before 6 the conclusive night, Reaves said he heard from a Perry aide that the reprieve had been denied.
On Perry's office getting its copy of Hurst's critique late in the afternoon, Reaves said: "I think it means they already had their minds made up. To tell you the truth, I'm kind of surprised they actually requested the report."
Many outside reports, all suggesting the fire wasn't arson, have since accumulated, with The Chicago Tribune, the Innocence Project and the Texas State Forensics Commission asking experts to weigh changes in fire science against the techniques applied in the Willingham investigation.
Craig Beyler, chairman of the International Association for Fire Safety Science, wrote in his August report for the commission: "The investigators had poor understandings of fire science."
Nothing can bring back Willingham or his daughters.
But whether the father lighted a fire to kill his children stands to provoke more debate.
Reaves, asked about the impact of his presenting Hurst's report four days before the execution, said: "Quite frankly, I thought that (timing) was in our favor — that (Hurst) had only been able to look at it a limited amount of time. I thought that would be enough to have a court give us more time. Naively, I thought a court would want to have him say so much in person."
Reaves speculated that if a report had been readied earlier — say, in the months after Cox wrote Hurst seeking his review — the challenge might have been more likely to win a hearing.
"It wouldn't have been looked at as a last-minute stall tactic," Reaves said. "They wouldn't have had to rush through considering and disposing (of) it. ... Somebody would have put the brakes on."
About 6 p.m., Reaves talked to Willingham by telephone to let him know Perry had denied the requested 30-day stay.
Reminded the other day that he was saddled with Willingham's case for about eight years, Reaves replied: "Still am. I promised him when I made that last call that I wasn't going to give up on it. I just don't feel like it's finished."
wgselby@statesman.com; 445-3644
