Westchester Guardian/Jeffrey Deskovic.

Thursday, September 10, 2009

Jeff Deskovic

A Case Of Wrongful Execution Emerges

The uncovering of wrongful convictions has become so frequent that no one disputes that they occur. In fact, as I have been writing about for some time, as have many other columnists, their causes are well-known and documented.

Across the country little legislation has been enacted to prevent wrongful convictions. It is a matter of common sense that any system of justice that results in wrongful convictions will inevitably execute innocent people if there is a death penalty as punishment.

There have been many instances of near-wrongful executions, in which people who had been wrongfully convicted and sentenced to death had been cleared, but not before coming within a hair’s breadth from being executed.

Ron Williamson, at one point, came within 3 days; Earl Washington came within 5; Larry Swearingen, whose case is still being litigated, came within a few hours despite exculpatory DNA evidence. Recently Troy Davis came within a few days before the United States Supreme Court ordered
that powerful evidence of his innocence be considered by a lower court.

However, while thankfully those men were not executed, pro-death penalty advocates have often pointed to those cases as examples of the system catching its own mistakes.

In addition, as I wrote about in my three part series, Exposing The Death Penalty, there have been many cases of likely wrongful executions, but there is no one case in which there is a general consensus from people on both sides of the death penalty issue that can be pointed to as a wrongful execution.

In fact, some pro-death penalty advocates, in response to the argument that the death penalty should be discontinued because of the danger of executing innocent people, have used the fact that there is no one consensus case in order to try to “prove” the illogical point that there has never even been one instance of an innocent person who was executed, as a reason why the death penalty should not be discontinued on this basis.

Unfortunately, as of a week ago, that argument can no longer be made: It has come to light through a study commissioned by the State of Texas
by arson expert Beyler that Cameron Willingham was wrongfully executed.

It remains to be seen what Texas will do with this report in terms of whether they will make an official statement owning up to having executed an innocent man. Currently state officials are reviewing Beyler’s report.

This moment is being viewed as both a watershed moment and a horror. It should come as no surprise to anyone that the inevitability of executing an innocent man has now come to pass and is being acknowledged by all except the State of Texas which has not yet publicly commented.

Facts: Cameron Todd Willingham was executed in Texas in 2004 for setting fire to his home and killing his three young daughters. The following
is taken from an Op-Ed piece by Bob Herbert in The New York Times: “ The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by the cries of his 2-year-old daughter, Amber. Also in the house were his year-old twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife, Stacy, had gone out to pick up a Christmas present for the children from the Salvation Army. Willingham said he tried to rescue the kids but was driven back by smoke and flames. At one point his hair caught fire. As the heat intensified, the windows of the children’s room exploded and flames leapt out. Willingham, who was 23 at the time, had to be restrained and eventually handcuffed as he tried again to get into the room.

There was no reason to believe at first that the fire was anything other than a horrible accident. But fire investigators, moving slowly through the ruined house, began seeing things (not unlike someone viewing a Rorschach pattern) that they interpreted as evidence of arson. They noticed deep charring at the base of some of the walls and patterns of soot that made them suspicious. They noticed what they felt were ominous fracture patterns in pieces of broken window glass. They had no motive, but they were convinced the fire had been set. And if it had been set, who else but
Willingham would have set it? With no real motive in sight, the local district attorney, was quoted as saying, “The children were interfering with his beer drinking and dart throwing.”

Willingham was arrested and charged with capital murder. Willingham couldn’t afford to hire lawyers, and was assigned two by the state: a former
state trooper, and a local defense attorney who represented everyone from alleged murderers to spouses in divorce cases—a “Jack-of-all-trades,” as he calls himself. He explained “In a small town, you can’t say ‘I’m a so-and-so lawyer,’ because you’ll starve to death,” When official suspicion fell on Willingham, eyewitness testimony began to change. Whereas initially he was described by neighbors as screaming and hysterical — “My babies are burning up!” — and desperate to have the children saved, he now was described as behaving oddly, and not having made enough of an effort to get to the girls.”

According to an investigative report by David Grann which was published in e New Yorker, “The crux of the state’s case, though, remained the scientific evidence gathered by two ‘experts’. On the stand, one of them 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,’ the expert said. ‘Mr. Willingham.’ e prosecutor asked the expert what he thought Willingham’s intent was in lighting the fire. ‘To kill the little girls,’ he said.”

According to the Op-Ed by Herbert, “A jailhouse informant also came forward who was a jumpy individual with a lengthy arrest record who would
later admit to being ‘mentally impaired’ and on medication, and who had started taking illegal drugs at the age of 9.”

According to The New Yorker, “The defense had tried to find a fire expert to counter the expert’s testimony, but the one they contacted concurred with the prosecution. Ultimately, the defense presented only one witness to the jury: the Willingham’s’ babysitter, who said she could not believe that Willingham could have killed his children.

The trial ended after two days. During his closing arguments, the prosecutor said that the puddle configurations and pour patterns were Willingham’s inadvertent “confession,” burned into the floor. Showing a Bible that had been salvaged from the fire, the prosecutor paraphrased the words of Jesus 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 was out for barely an hour before returning with a unanimous guilty verdict. As one of the experts put it, “The fire does not lie.”

Post Conviction: Lacking money to hire attorneys to handle his appeals, Willingham was forced to proceed with a public defender to file his
appeals. Multiple accounts of this case state that the representation he received was inadequate. In fact, during a later stage of his appeals, when a new attorney entered the litigation, he unsuccessfully challenged the adequacy of both appellate and trial representation.

But even this new attorney was not that effective, because whenever Willingham’s amateur investigator would send the attorney leads, there
was no follow-up work done. A lack of financial resources appears to be the reason that no follow-ups were done. And so, instead of challenges to his conviction being based on new factual information, they were instead based upon points of law.

After his last appeal had been turned down, according to The New York Times Op-Ed by Bob Herbert, “a renowned scientist and arson investigator, Gerald Hurst, educated at Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in the Willingham case on a pro bono basis and began systematically knocking down every indication of arson.”

According to the article in The New Yorker by Grann, “As Hurst looked through the case records, a statement by Manuel Vasquez, the
state deputy fire marshal, jumped out at him. The expert had testified that, of the roughly twelve hundred to fifteen hundred fires he had investigated, ‘most all of them’ were arson. This was an oddly high estimate; the Texas State Fire Marshal’s Office typically found arson in only fifty per cent of its cases.

“Hurst was also struck by the expert’s claim that the Willingham blaze had ‘burned fast and hot’ because of a liquid accelerant. The notion that a flammable or combustible liquid caused flames to reach higher temperatures had been repeated in court by arson sleuths for decades. Yet the theory was nonsense: experiments have proved that wood and gasoline-fueled fires burn at essentially the same temperature. The
two experts had cited as proof of arson the fact that the front door’s aluminum threshold had melted. ‘The only thing that can cause that to react is an accelerant,’ one of the experts had said.

Hurst was incredulous. A natural-wood fire can reach temperatures as high as two thousand degrees Fahrenheit— far hotter than the melting point for aluminum alloys, which ranges from a thousand to twelve hundred degrees. And, like many other investigators, both experts mistakenly assumed that wood charring beneath the aluminum threshold was evidence that, as one of the experts put it, ‘a liquid accelerant
flowed underneath and burned.’

“Hurst had conducted myriad experiments showing that such charring was caused simply by the aluminum conducting so much heat. In fact,
when liquid accelerant is poured under a threshold a fire will extinguish, because of a lack of oxygen. ‘Liquid accelerants can no more burn under an aluminum threshold than can grease burn in a skillet even with a loose-fitting lid,’ Hurst declared in his report on the Willingham case. Hurst then examined the two expert’s claim that the ‘brown stains’ on Willingham’s front porch were evidence of ‘liquid accelerant,’
which had not had time to soak into the concrete. Hurst had previously performed a test in his garage, in which he poured charcoal-lighter fluid on the concrete floor, and lit it. When the fire went out, there were no brown stains, only smudges of soot. Hurst had run the same experiment many times, with different kinds of liquid accelerants, and the result was always the same. Brown stains were common in fires; they were usually composed of rust or gunk from charred debris that had mixed with water from fire hoses.

Another crucial piece of evidence implicating Willingham was the ‘crazed glass’ that the expert had attributed to the rapid heating from a
fire fueled with liquid accelerant. Yet, in November of 1991, a team of fire investigators had inspected fifty houses in the hills of Oakland, California, which had been ravaged by brush fires. In a dozen houses, the investigators discovered crazed glass, even though a liquid accelerant had not been used.

“Hurst then confronted some of the most devastating arson evidence against Willingham: the burn trailer, the pour patterns and puddle configurations, the V-shape and other burn marks indicating that the fire had multiple points of origin, the burning underneath the children’s beds. Hurst recalled that both experts had considered it impossible for Willingham to have run down the burning hallway without scorching his bare feet. But if the pour patterns and puddle configurations were a result of a flashover, Hurst reasoned, then they were consonant with Willingham’s explanation of events. When Willingham exited his bedroom, the hallway was not yet on fire; the flames were contained within
the children’s bedroom, where, along the ceiling, he saw the ‘bright lights.’

One of the experts had made a videotape of the fire scene, and Hurst looked at the footage of the burn trailer. Even after repeated viewings, he could not detect three points of origin, as one of the experts had Without having visited the fire scene, Hurst says, it was impossible to pinpoint the cause of the blaze. But, based on the evidence, he had little doubt that it was an accidental fire— one caused most likely by the space heater or faulty electrical wiring.”

This report was hurriedly presented to the Texas Board of Pardons and Paroles as a basis for granting clemency. Despite this evidence, they denied clemency. Explaining their decision to Grann, one of the members stated, ‘You don’t vote guilt or innocence. You don’t retry the trial. You just make sure everything is in order and there are no glaring errors.’ He noted that although the rules allowed for a hearing to consider
important new evidence, ‘in my time there had never been one called.’ When [Grann] asked him why Hurst’s report didn’t constitute evidence of ‘glaring errors,” he said, “We get all kinds of reports, but we don’t have the mechanisms to vet them.” Although Texas Gov. Rick Perry still had the authority to grant clemency, he did not do so. According to The New Yorker, “The Innocence Project obtained, through the Freedom of Information Act, all the records from the governor’s office and the board pertaining to Hurst’s 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,” Barry Scheck said. “The only reasonable conclusion is that the governor’s office and the Board of Pardons and Paroles ignored scientific evidence.” According to Herbert’s op-ed in The New York Times, “Willingham was executed by lethal injection on Feb. 17, 2004.”

Execution: According to Herbert’s Op-Ed in The New York Times, The following year, Texas created the Forensic Science Commission to investigate charges of scientific mistakes or misconduct, and the panel began looking into the Willingham case. It commissioned Craig Beyler, a nationally recognized fire expert, to examine evidence and review Hurst’s report. Mr. Beyler issued a report last week that painted an ugly picture of what passes for expert scientific investigation and testimony in a capital case in Texas. The report found that the official inquiry
into the Willingham fire did not meet prevailing scientific standards of the time, much less current ones.

“The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham ‘seems to be wholly without any realistic understanding of fires.’ He said the marshal’s approach seemed to lack ‘rational reasoning’ and he likened it to the practices ‘of mystics or psychics.’

When the jailhouse snitch was told of the scientific evidence as reviewed by Beyler would show that an innocent man was executed, the snitch seemed taken aback. ‘Nothing can save me now,’ he said.

Reviewing Beyler’s findings, Equal Justice USA, an organization that according to them, “focuses on the injustices perpetrated against the
accused and convicted under our legal system and educates the public,” has summed up the review this way: “It turns out that evidence used to convict Willingham was nothing more than junk science and a wholly inadequate defense team:

• Several scientific investigations since the trial, including the one by the state government's own appointed forensic scientists, have concluded the "scene of the crime" was really just the scene of a horrible accident, and the supposed expert testimony originally presented at trial defied "rational reasoning" and violated "not only the standards of today but even of the time period."

• Even though the fire "experts'" evidence was clearly questionable, Willingham's own court-appointed lawyers were convinced of his guilt and offered no rebuttal expert.

• The jailhouse snitch to whom Willingham allegedly confessed suffered from serious mental impairments and recanted on his testimony more
than once.

• In attempts to assert that Willingham fit the profile of a sociopath, the prosecution used as evidence the fact that Willingham had Iron Maiden and Led Zeppelin posters. In a matter of life and death, what band posters one chooses to decorate one's walls with seems clearly of no consequence.

This report represents the most powerful record to date that an innocent person was executed - an unfathomable reality. Willingham himself could barely comprehend the tragedy of his situation. While on death row, he said, “I just been trying to figure out why after having a wife and 3 beautiful children that I loved my life has to end like this.”

In his op-ed in The New York Times, Herbert said Cameron Todd Willingham, who refused to accept a guilty plea that would have spared his
life, and who insisted until his last painful breath that he was innocent, had in fact been telling the truth all along.