The Execution of an Innocent Man

In the 2006 case Kansas v. Marsh, U.S. Supreme Court Justice Anton Scalia affirmed that, in the modern American judicial system, there has not been “a single case—not one—in which it is clear that a person was executed for a crime he did not commit.”

In the past year, a nominee for this tragic distinction has again been put forward. Strong evidence suggests that Cameron Todd Willingham, who was executed by the state of Texas in February of 2004 at the age of 36, was wrongfully convicted of burning his three small children to death. The prosecution’s primary witness, state fire marshal Manuel Vasquez, who testified at trial that the deadly fire was arson, has been thoroughly discredited in his science and his methods by several experts in the field of arson forensics, including Craig Beyler, who was hired by a Texas state commission to investigate errors and misconduct in the handling of the forensic evidence in that and another case. Beyler concluded: “A finding of arson could not be sustained.” Beyler not only found the methods used by Vasquez to fail to conform to standard methods of fire investigation, but said that Vasquez seemed to be “wholly without any realistic understanding of fires.” He said the fire marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”

Nationally respected fire investigator Dr. Gerald Hurst had also reported his conclusion that there was no evidence of arson. Four days before Willingham’s execution in 2004, his attorney attached Hurst’s report to a petition seeking relief from the Texas Court of Criminal Appeals, and from the governor. The courts and Texas governor Rick Perry did not act to halt the execution, which was carried out on February 17 of that year. Journalist David Grann, in “Trial by Fire,” in the September 7, 2009, New Yorker magazine, interviewed members of the Texas Board of Pardons and Paroles, which reviews applications for clemency. His interviews leave one with the sickening impression that Hurst’s report was not even looked at:

LaFayette Collins, a member of the board at the time, told me of the process, “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 I 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.” [emphasis added]

Hurst, along with three other fire investigators—private consultants John Lentini and John DeHaan, and Louisiana fire chief Kendall Ryland—was asked by the Chicago Tribune later that year, after Willingham’s execution, to review additional documents, trial testimony and an hour-long videotape of the aftermath of the fire scene. The Tribune reported:

“There’s nothing to suggest to any reasonable arson investigator that this was an arson fire,” said Hurst, a Cambridge University-educated chemist who has investigated scores of fires in his career. “It was just a fire.”

Ryland, chief of the Effie Fire Department and a former fire instructor at Louisiana State University, said that, in his workshop, he tried to re-create the conditions the original fire investigators described. When he could not, he said, it “made me sick to think this guy was executed based on this investigation. ... They executed this guy and they’ve just got no idea—at least not scientifically—if he set the fire, or if the fire was even intentionally set.”

Fire expert John Lentini told the Tribune, “There was no evidence to support a conclusion that the fire was intentionally set. Just an unsupported opinion."

In a lethal irony, Earnest Willis, convicted on the same kind of invalid evidence, was freed October 6 from the same facility where Mr. Willingham had been executed February 17. Willis had been convicted of setting a fire that killed two women, and after 17 years on Death Row, had been granted a new trial on unrelated legal issues. Pecos County District Attorney Ori White had to decide whether to retry Willis. White asked Hurst and Kendall Ryland to review the fire evidence.

Hurst told David Grann, “It was like I was looking at the same case.” Hurst concluded there was no evidence of arson, and Ryland concurred. White then dropped the case against Willis. After seventeen years on death row, Willis was set free. White told the Tribune, "I don't turn killers loose. If Willis was guilty, I'd be retrying him right now.” White noted to Grann how close the system had come to murdering an innocent man. “He did not get executed, and I thank God for that,” he said.

In 2006, the Innocence Project commissioned Lentini and three other independent fire investigators—Daniel L. Churchward, David M. Smith, and Douglas J. Carpenter—to conduct an independent review of the arson evidence in the Willingham and Willis cases. The panel concluded that, counter to what the prosecution had alleged in convicting Todd Willingham, the fire that killed the Willingham children was not an incendiary fire. They concluded, in fact, that neither fire was arson. The panel also concluded that “each and every one” of the indicators of arson relied on by the state’s expert witness in both cases had been “scientifically proven to be invalid.” (See http://www.innocenceproject.org/docs/-ArsonReviewReport.pdf.)

The Texas Forensic Science Commission which commissioned Craig Beyler to investigate the Willingham forensic evidence also asked Beyler to look at the evidence in the Willis case. Beyler found that in both cases, “The investigators had poor understandings of fire science and failed to acknowledge or apply the contemporaneous understanding of the limitations of fire indicators. Their methodologies did not comport with the scientific method.” He found that in both cases “A finding of arson could not be sustained.”

However, as Beyler noted, “On October 6, 2004 Mr. Willis was released from prison and on February 17, 2004 Cameron Todd Willingham was executed by lethal injection.” (See http://www.docstoc.com/docs/¬document-preview.aspx?doc_id=10401390.)

In Kansas v. Marsh, Justice Scalia said:

Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to….

Could Justice Scalia still affirm that, in the modern American judicial system, there has not been “a single case—not one—in which it is clear that a person was executed for a crime he did not commit”? And if one could hang onto some thread of belief that Scalia’s assertion is still true, what would it prove? Would it prove “the system works”?

According to the Innocence Project, a non-profit legal clinic affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University, seventeen people in the United States have been exonerated by DNA testing after serving time on death row. Does anyone believe that those seventeen were exonerated by “the system”? Or is it more likely that the system would have put them to death if not for the volunteer efforts of students and lawyers? And does anyone really believe that these seventeen are the only cases in which someone has been wrongfully sentenced to death?

Perhaps we must accept the possibility that someone will be punished mistakenly in any large-scale system of criminal justice. But Scalia’s assertion that “in the current American system, that possibility has been reduced to an insignificant minimum,” would be a callous attitude today in the face of the decidedly significant execution of an innocent man.