New Movie Shines a Spotlight on Fire Investigation
More than 15 years after his death, Cameron Todd Willingham is back in the news with the release of the movie Trial by Fire, starring Laura Dern and Jack O’Connell. https://www.nydailynews.com/news/national/ny-trial-by-fire-movie-20190519-7d4etsudabetleddebudnzggte-story.html
I first heard the name of Cameron Todd Willingham in the fall of 2004. Maurice Possley, then a crime reporter for the Chicago Tribune, was doing a series called “Forensics Under the Microscope” and he called to inquire about the science behind Mr. Willingham’s 1992 conviction. Willingham had remained on Texas’ Death Row for 12 years before being executed by lethal injection on February 4, 2004. He protested his innocence until the end.
Mr. Possley asked me to review the Fire Marshal’s report and testimony in the case, as well as a report prepared at the last minute by Dr. Gerald Hurst. As Mr. Possley and I discussed the many problems with the Willingham case, I mentioned to him that I had an upcoming arson/homicide trial based on an investigation with similar problems. Mr. Possley decided to come to Atlanta to attend the trial and report on it. The result was an extensive piece beginning on page 1 entitled “Arson Myths Fuel Errors.” The story is still available at the Tribune’s website.
(The case that Mr. Possley came to watch is described at the link above.)
Willingham’s story was next picked up by National Public Radio’s Weekend Edition in April 2005. I had the pleasure of being interviewed on the subject by NPR’s Scott Simon. That interview is still available on the NPR website.
It was in early 2006 that my most significant interaction with the late Mr. Willingham began. I was scheduled to give a lecture in San Antonio to a group of Federal Public Defenders. Shortly after I checked in to my hotel room, I received a call from Barry Scheck of the Innocence Project who offered to buy me a drink if I would meet him in the bar. Never being one to turn down a free drink, I accepted. Barry told me about two Texas cases with nearly identical evidence but diametrically opposite results. Ernest Ray Willis, like Mr. Willingham, had been convicted and sentenced to die on the basis of “low burning” and “pour patterns.” In Mr. Willis’s case, however, a newly-elected prosecutor had reviewed the evidence and concluded that it smelled like BS (Bad Science).
Mr. Willis had spent 19 years on Death Row. He had been granted a new trial because the original trial judge had learned that Willis had been heavily drugged during his trial, and the prosecutor had used his “impassive” demeanor as more proof of his guilt. This did not please the trial judge, who ordered a new trial for Mr. Willis. It was then that the prosecutor reviewed the physical evidence and realized that it would not sustain a conviction.
Mr. Scheck asked me to review both cases, but I told him I had no desire to take on the State of Texas alone. He told me to feel free to recruit as much help as I wanted, so I did. When I returned home, I contacted David Smith of Associated Fire Consultants, a past president of the IAAI, Dan Churchward, the current chairman of the NFPA 921 committee, and Doug Carpenter, a fire protection engineer with Combustion Science and Engineering and a member of the 921 committee. All three of these gentlemen immediately agreed to assist.
To keep us out of legal trouble, I recruited a lawyer, Michael McKenzie of Cozen O'Connor, with whom I had worked on dozens of fire cases (mostly civil arson defense cases), and who knew the law about arson better than any other lawyer, and had a pretty good grasp of the science as well.
We each reviewed the expert testimony in both the Willingham and the Willis cases, as well as all of the Fire Marshal’s reports, photos, and videos. We investigated 20 alleged “indicators of arson” cited in the Willingham case, including “auto-ventilation,” crazed glass, melted aluminum and the alleged “pour pattern” shown below. The fire burned through two layers of tile and charred the underlying wood. No ignitable liquid lasts long enough to cause such damage. During the trial, the prosecutor referred to this pattern as “cross-shaped,” but in the ensuing years described it as a pentagram, suggesting that Willingham drew it in liquid because he was a Satan worshipper. This was divined from the Iron Maiden and Led Zeppelin posters in his room. (Did these guys never hear of Stairway to Heaven?)
Our report was published in early April 2006, and formally presented to the Texas Forensic Science Commission at a news conference at the State Capitol in Austin on May 2, 2006.
The Texas Forensic Science Commission (FSC) was established by an act of the legislature in 2005. It was a “Coverdell entity”. Every state that receives federal funds for forensic science is required to have such an entity to investigate when there are complaints of negligence, incompetence, or bad science. The Texas legislature, although it established the FSC, did not fund it until 2008. When they had their first meeting, the Willingham/Willis complaint was the first one they heard.
One of the first steps in investigating our complaint was to hire their own consultant. After a nationwide competition, they settled on Dr. Craig Beyler of Hughes Associates (now Technical Director Emeritus of Jensen Hughes and Chair of the OSAC Subcommittee on Fire and Explosion Investigations).
Dr. Beyler submitted his report on August 17, 2009, and was scheduled to formally present it to the FSC on October 2.
At about the same time, David Grann wrote an article for the New Yorker entitled “Trial by Fire,” on which the current movie starring Laura Dern and Jack O'Connell is based. The New Yorker article caused quite a stir, and resulted in a New York Times editorial of August 31, 2009, which railed against the death penalty. Neither the arson review committee report nor Dr. Beyler's report took any position on the subject of the death penalty, the death penalty opponents embraced (i.e., hijacked) the Willingham case as their own.
Two days before Dr. Beyler was scheduled to make his report to the FSC, Gov. Rick Perry replaced the Chairman, Sam Bassett, and two other members of the committee, throwing it into total disarray. The firings were likened to the Saturday night massacre that happened during the Watergate days. Gov. Perry appointed John Bradley as the new Chairman of the FSC, and he did not reschedule Dr. Beyler's appearance for several months. Bradley a gung-ho prosecutor, was clearly hostile to the work of the FSC and attempted to push through a whitewash of the investigation.
Due to the structure of the FSC, however, with seven scientists and two attorneys, Bradley’s whitewash was outvoted by the scientists on the committee.
The case raised strong opinions on many different levels, and some who defended his conviction and execution were distorting aspects of the case, and some of those distortions are being repeated or reported as fact. The Innocence Project addressed these myths and facts in 2009. In addition to the myths reported in the Innocence Project paper, some later observers pointed to the refrigerator that was in front of the back door. This was supposedly moved there by Willingham to prevent escape. The fact is that the refrigerator was in that place months before the fire. There were, in fact, two refrigerators in the small kitchen. Neither Jimmie Hensley, the police detective, nor Douglas Fogg, the assistant fire chief, believed that the refrigerator was part of the arson plot.
In 2010, Judge Charles Baird of the 299th District Court in Travis County convened a “Court of Inquiry” and received documentary evidence from the Innocence Project, and sworn testimony from Dr. Gerald Hurst and myself. The Court invited the current Navarro County District Attorney, the state prosecuting attorney the State Fire Marshal and Willingham's wife to attend the hearing but each declined the invitation. Judge Baird would eventually prepare an order exonerating Cameron Todd Willingham, but he was prevented from formally filing it by the Appeals Court. Judge Baird’s order as well as all of the documents previously referred to in this article can be found at https://app.box.com/s/ow8lzq276j4srmc0fktn
In August 2010, the current State Fire Marshal, Paul Maldonado, had admitted that while there were some shortcomings in the way the Willingham investigation was conducted, he stood behind the ultimate conclusion. He was silent on the Willis case.
I responded to Mr. Maldonado's standing by his findings in September 2010 with a letter to the FSC that was published in the Dallas Morning News as well. Also in 2010, the National Institute of Justice (NIJ) Annual Symposium held a session entitled “Rising from the Ashes: What Have We Learned from the Willingham Case?” Speakers
included Itiel Dror, David Grann and myself. https://www.youtube.com/watch?v=igK--bGsano&feature=youtu.be
The Texas Forensic Science Commission continued their investigation and on April 15, 2011 released a report containing 17 recommendations for the investigation of alleged origins in the state of Texas. Later that year, a documentary on the Willingham case and the FSC’s struggles with it called Incendiary was produced by Joe Bailey and Steve Mims. The documentary is still available on iTunes. The movie opens with an interview with me. (Thus, I got billing above Rick Perry when the credits rolled.) https://itunes.apple.com/movie/incendiary-the-willingham-case/id499126193?ign-mpt=uo%3D5
In 2011, Texas elected a new Commissioner of Insurance, Elinor Katzman, and she called Mr. Maldonado into his into her office on December 12. She asked for and received a one-sentence, hand-writen resignation letter at that time and Texas began the search for new Fire Marshal.
Shortly after the FSC released its report in April, Texas Attorney General Greg Abbott (now the governor) ruled that the FSC had no authority to review the two arson cases because they took place before the Commission was created. Though clearly not the intent of the authorizing legislation in 2005, the Attorney General 's ruling effectively put an end to the Commission’s investigation.
In May 2012, the Texas Insurance Commissioner appointed Chris Connealy, a former fire chief as the state’s new Fire Marshal. When he was asked about which of the FSC’s recommendations he intended to follow, he said, “all of them.” Faced with the prospect of learning how to conduct scientific investigations, about 20% of the Deputy Fire Marshals decided it was time to move on. Chief Connealy was unfazed. He recruited talented investigators, lawyers, chemists and engineers from around the state and around the country to establish a Science Advisory Workgroup (SAW). Then, working with the Innocence Project of Texas (IPOT) he set out to find anyone serving time for arson in Texas who was convicted using invalid methods. Several questionable cases were identified and District Attorneys and defense counsel were notified.
When the devastating ammonium nitrate explosion in West, TX occurred, Chief Connealy stepped outside his usual role and identified more than 100 locations where the potentially explosive fertilizer was stored. He met with as many business owners as would meet with him to identify ways of preventing another catastrophe. Less than two years after his appointment, Chief Connealy was a Finalist for 2013 Texan of the Year.
Having recovered from “hitting rock bottom” in 2010, the Texas Fire Marshal’s Office is now one of the most highly respected offices in the US. Sadly, Chief Connealy's determined efforts, with strong backing from the IAAI, to get other state fire marshals to adopt his approach have not succeeded yet. I guess it's necessary to hit rock bottom before one is ready to make serious reforms. Chris has since moved on to become Senior Director of Emergency Services in Williamson County, just north of Austin. He remains an active member of the OSAC Subcommittee on Fire and Explosion Investigations.
Cameron Todd Willingham was not a pillar of the community. He is unlikely to have ever accomplished much, but his death has reverberated and continues to reverberate through the fire investigation and legal communities.
Commenting on the release of Trial by Fire, Barry Scheck stated, “The Willingham case really brought these issues of junk forensic science to the forefront and in that context Todd did not die in vain.” Jack O'Connell added, “It's just a shame that it takes a catastrophe like that to effect change.”