Anyone with a passing interest in capital punishment or notions of justice should tune in to the saga of Cameron Todd Willingham, a Texas man convicted in 1992 of murdering his three daughters by arson and executed in 2004. The New Yorker’s David Grann renewed attention to the case in September with a powerful, stomach-churning story detailing the flaws in the arson investigators’ evidence that led to the execution of a man who may have been innocent. (The Chicago Tribune was on the case first, in 2004.)
Grann reported that a Texas commision investigating allegations of forensic misconduct is nearing completion of one of its first case reviews — on Willingham. But at the end of September, Texas Gov. Rick Perry replaced three commission members, including the chairman, who says Perry’s lawyers had pressured him about the case. The new chairman then canceled a hearing that would have included testimony from a fire scientist whose report for the commission concluded, according to Grann, “that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory … relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire.”
Perry has already played a major role in the case. He was governor in 2004, when another fire expert concluded the arson evidence used against Willingham was “junk science.” Perry and the state board that reviews clemency applications both apparently ignored that expert’s last-minute report, and Willingham was executed. On Tuesday, the Houston Chronicle and parent company Hearst Newspapers sued Perry “to force the release of a clemency report Perry received before denying a stay of execution” to Willingham.
Perry’s not the only person digging in his heels. Here’s a jaw-dropping interview with one of Willingham’s attorneys, who displays a Sarah Palin-like (or Betsy McCaughey-like) disregard for “facts” and “science” while insisting his own client was guilty.
What is it about this case that’s causing such bull-headedness? A big part of it is surely Perry’s re-election primary fight against Sen. Kay Bailey Hutchison. Part of it is the possibility, as Grann writes, that Texas “could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the ‘execution of a legally and factually innocent person.’” (The ousted commission chairman told the Houston Chronicle that the commission would not have “commented on actual innocence or guilt of any defendant in any case.”)
But I think a big part is what might be called the Moneyball factor: a culture based on apocrypha, folklore, gut feelings and tradition is revealed as a fraud by a new culture based on empirical evidence. Only in this case we’re talking about matters of guilt, innocence, life, and death rather than batting average, on-base percentage, and pennant races.
In February 1992, the National Fire Protection Association issued NFPA 921 — “considered the standard on fire investigation and … a key reference text for the Texas fire marshal’s office,” according to the 2004 Chicago Tribune story. The NFPA had conducted experiments and found that ostensible signs of arson — floor burn patterns, V-shaped soot marks, melted aluminum under doors — could be produced by any house fire. Yet the theories debunked in NFPA 921 were the same ones used to convict Willingham six months later.
Such junk science was apparently widely used as evidence by fire investigators for years. How many previous innocent people must have been convicted by an arson investigator’s confident ignorance? While the Tribune story says Willingham is the only person since the death penalty was re-instated in the ’70s to have “been put to death for a crime in which fire was the murder weapon,” there must be plenty of similar cases that resulted in lesser punishments. Grann writes that the fire investigator in the Willingham case “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 Marshals Office typically found arson in only fifty per cent of its cases.”
The Tribune notes that “Some investigators … have refused to acknowledge [NFPA 921], preferring to stick to the old ways.” As fire investigator John Lentini recently explained to Science magazine: “Most fire investigators were trained by mentors who were trained by mentors, who passed on belief systems based on anecdotal experience rather than on chemistry and physics.”
You can see this mentality in the interview with David Martin, Willingham’s attorney. You can see it in the pushback against challenges to the efficacy of fingerprinting. That the mentality is understandable — can you imagine the personal and institutional guilt, not to mention the lawsuits, that would arise upon admitting the truth? — makes it no less reprehensible. Willingham may be dead, but convictions based on junk science surely haven’t stopped.
(I should pause here to acknowledge some un-Palin-like voices unconvinced by the latest findings. First, a Dallas Morning News story makes the case that “serious questions” have been raised about claims of Willingham’s innocence. I find the article unpersuasive. The argument is basically that Willingham “did much that tended to incriminate him” after the fire: making contradictory statements, allegedly not trying hard to save his daughters after escaping the fire, having a history of family violence, and cursing out his ex-wife while receiving his lethal injection. Regarding the latter two facts, the issue isn’t whether he was a good person — it’s whether he murdered his daughters by setting their house on fire. As for claims that Willingham didn’t try to save his daughters, Grann traces in his story how witnesses’ stories tended to change — becoming more critical of Willingham as he became the main suspect. The DMN story doesn’t dispute the criticism of the original evidence, except to note that the fire scientist whose testimony before the Texas commission was canceled does not posit a cause of the fire or rule out arson in his report for the commission. Again, true but beside the point, which is that the original evidence was bogus.)
(Second, Willingham’s ex-wife, Stacy Kuykendall, recently released a statement saying that Willingham confessed to her during a prison visit. In a New Yorker blog post, Grann details how the statement “directly contradicts numerous previous statements she has made: in interviews with police and fire investigators; in testimony during the trial; in letters to public officials and Willingham’s lawyers; and in her comments to the press.”)
The one thing that’s not clear in all of this are the implications of a potential finding of Willingham’s innocence. Grann writes:
Former Supreme Court Justice Sandra Day O’Connor has said that the “execution of a legally and factually innocent person would be a constitutionally intolerable event.” Such a case has become a kind of grisly Holy Grail among opponents of capital punishment.
Grann also notes that part of Supreme Court Justice Antonin Scalia’s 2006 justification for upholding the death penalty was the absence of “a single case—not one—in which it is clear that a person was executed for a crime he did not commit.”
The big question is, would an admission by Texas of just such a case force the court to quickly accept an appeal, rule capital punishment unconstitutional, and suspend it once again? In other words, did O’Connor and Scalia reference the executed-innocent scenario because it would be a politically powerful event, or because it has inherent constitutional implications?
Of course, if Rick Perry gets his way, we may not get answers to those questions anytime soon.