http://www.nytimes.com/2010/10/15/us/15execution.html?_r=1&th&emc=th

 

October 14, 2010

Family’s Effort to Clear Name Frames Debate on Executions

By JOHN SCHWARTZ

AUSTIN, Tex. — It was an unusual hearing. The subject at the center of it all, Cameron Todd Willingham, was not present. After being convicted of murdering his three children in a 1991 house fire, he was executed in 2004.

Members of Mr. Willingham’s family, working with lawyers who oppose the death penalty, had asked for the rare and controversial hearing, held here on Thursday, to investigate whether Mr. Willingham was wrongfully convicted. They argue that the proceeding, known as a court of inquiry, could restore Mr. Willingham’s reputation, a right guaranteed under Texas law, even to the dead.

But they also say that the hearing is more than symbolic — it could cast in a new light the Lone Star State’s record on executions. And more broadly, they argue, it is a cautionary tale about the power of flawed science to sway a courtroom, and a glaring injustice that could affect debates over the fairness of the death penalty.

That debate has been framed, in part, by a 2006 opinion written by Justice Antonin Scalia of the United States Supreme Court, in which he said that the dissent in a case had not cited “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.”

Many who oppose the death penalty have taken Justice Scalia’s statement as a challenge, and argue that the Willingham case is their proof.

To those favoring the death penalty, Mr. Willingham is guilty, and the efforts to posthumously exonerate him are an abolitionist farce.

Critics of the hearing have said the proceeding is illegal, and have tried to derail it. The district attorney of Navarro County, R. Lowell Thompson, whose office originally convicted Mr. Willingham, filed a motion last week demanding that Judge Charlie Baird recuse himself, arguing a judge cannot appoint himself to lead a court of inquiry, and must instead refer the matter to a higher court for an appointment. At the beginning of the hearing on Thursday, Judge Baird ruled that he would allow the hearing to go forward.

At the end of the day, however, as testimony was closing down, the Texas Third Court of Appeals in Austin issued a stay at Mr. Thompson’s request, ordering Judge Baird not to hold further proceedings or to issue rulings until next Friday, and asked the Willingham team to explain why the case should be allowed to go forward.

The focus of lawyers for Mr. Willingham’s family was on evidence presented by fire marshals at Mr. Willingham’s original trial — evidence that nine experts have said included “many critical errors,” as one report put it. Several of the experts were working at the request of the Innocence Project, an organization that seeks the acquittal of wrongfully convicted people.

The expert who wrote that critical report, Gerald Hurst, argued that evidence suggested the fire was accidental, not arson. His report was sent to Gov. Rick Perry shortly before the execution, but Mr. Perry declined to halt or delay the procedure.

The evidence presented at trial that Mr. Willingham committed arson “amounts to junk science,” Gerald H. Goldstein, a San Antonio lawyer arguing on behalf of the Willingham family, said in the courtroom.

Judge Baird asked Dr. Hurst at the hearing whether his review of the case could rule out arson “within a reasonable degree of scientific certainty.”

Dr. Hurst demurred. “I never had a case where I could exclude arson,” he said. “It’s not possible to do that.”

The judge then asked if “there’s nothing in the evidence you’ve seen here that suggests arson.”

“That’s correct,” Dr. Hurst said.

John Lentini, a fire expert who has studied flawed arson investigations, hammered at the evidence and analysis from fire marshals at the Willingham trial.

Under questioning by Barry Scheck, a founder of the Innocence Project, Mr. Lentini ridiculed critical testimony at the trial that 20 factors, including burn patterns on the floor and cracks in the windows, proved that Mr. Willingham spread accelerants to fuel the fire.

No such chemicals were found in the house, Mr. Lentini said. Much of the analysis of Manuel Vasquez, the state fire marshal in the Willingham trial, “didn’t even meet the standards of 1991,” a time that Mr. Lentini characterized as having “a wretched state of the art.”

The current fire marshal, Paul Maldonado, stands by the work of the original marshals in the Willingham case, which Mr. Lentini said he found mystifying.

Mr. Lentini said that the flaws in the science required the state to go back and take a new look at other arson convictions. “I can understand why the fire marshal doesn’t want to go back and review hundreds of cases,” he said. “But that’s probably his duty.”

Governor Perry has fought the review of the case, and declined to participate in the hearing. Katherine Cesinger, his spokeswoman, said, “Nothing the Austin court does can change the fact that Todd Willingham was convicted in a trial court with the appropriate jurisdiction, and sentenced to death by a jury of his peers for murdering his three young daughters.”

The case, she noted, had worked its way through the appeals process and even reached the Supreme Court over the course of more than a decade. The governor has described Mr. Willingham as “an absolute monster who killed his own kids.”

Closing the hearing, former Gov. Mark White said that “the frailty of the system has been demonstrated clearly and overwhelmingly by the testimony brought forth in this court today.”

In an interview, Mr. Scheck said, “What we’ve proven is there was no crime” in the Willingham case.

“I would expect that at the end of the day, what we’ll get is an opinion that an innocent man was executed in Texas,” he added.

Even if that should happen, its impact will be minimal, said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a group that supports the death penalty.

“It’ll be trumpeted on the Death Penalty Information Center site,” he said, referring to a group that opposes capital punishment. “Nobody on the other side of the aisle is going to give it any credence.”

To one person attending the hearing, however, it was anything but meaningless. Eugenia Willingham, Mr. Willingham’s stepmother, said during a break in the proceedings that it was an important day.

“This is what he wanted us to do,” she said of her stepson. “He wanted us to stand up for him.”

Copyright 2010 The New York Times Company

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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs