Published on
The Sydney Morning Herald

A Case of Innocence Executed

Bernard Lagan

It is unlikely you've ever heard of Cameron Todd Willingham. He was an out of work Texas mechanic in the state's poor rural north-east who cared for his three small children while his 22-year-old wife worked in bar. He died at 36 in 2004; executed by lethal injection at the infamous Huntsville prison – the oldest in Texas – and where 362 people died in the electric chair before it was replaced with lethal injection in 1964.

He had always declared he was innocent of setting the blaze in his house, which took the lives of his three children two days before Christmas in 1991. His last protest was to refuse to cooperate with his executioners and had to be dragged to the death chamber's gurney. He was gone within 20 minutes and soon forgotten like most of the 1152 people who've died in Texas at executioner's the hand or the 16,708 across the US, beginning with George Kendall, a Virginian soldier, shot in 1608 for spying.

Now Cameron Willingham has arisen from the sheeted gurney within the green walls of Huntsville execution chamber to cast the shadow over the American justice system that defenders of the death penalty never wanted to see; has an innocent man been executed and will Texas become the first state to ever admit it?

The Willingham case has been looked at sporadically over the years, mostly because of the shambolic investigation, which maintained arson led to the fire in his home. It was, however, The New Yorker magazine in its September 7 issue that cast the greatest doubt on Willingham's guilt. The magazine published one of the longest articles in its 84-year history – a towering 17-page piece by writer David Grann that reduced to splinters the case again Willingham in words that hold so tight, they crush.

Willingham was abandoned by his mother as a baby and raised by his father, a wrecker's yard worker. Soon after dropping out of high school he chalked up arrests for stealing a bike, driving drunk and shoplifting. In his early 20s he married a girl called Stacy who, aged four, had seen her stepfather strangle her mother. He drank too much and sometimes hit Stacy.

His life was unlike that of the square-jawed, ex-military pilot, wealthy rancher's son and avowed Republican who replaced George Bush as Texas Governor. It was this man, Ric Perry, who signed off on his execution. Now it is Ric Perry who is the focus of much anger by the informed and articulate anti-death penalty movement in America who see within his bewildering actions and statements since the New Yorker piece appeared a fear of where Cameron Willingham's ghost might lead.

Within three weeks of the publication of the New Yorker article, Perry suddenly, and totally unexpectedly, announced that he had fired members of the Texas Forensics Commission, whom he had appointed, just two days before the commission was to hear evidence from one of America's mostly highly regarded arson experts on the Willingham case. Dr Craig Beyler intended to say Willingham had been convicted on evidence of arson that was wrong. Other leading experts have agreed that the original arson findings were made by ill-trained men who had little or no understanding of fire behaviour.

Investigators from Willingham's home town 0f 20,000, Corsicana, claimed at his trial that, judging by the fracture patterns on broken glass — known as crazed glass — left by the blaze, someone had trailed flammable liquid under the children's beds, along the hallway and out the front door. Scientists have since discovered that water sprayed by firemens' hoses caused the fracture patterns when glass suddenly cools. Among the other forensic evidence used against Willingham — mostly all of it now exposed as shoddy and wrong — was a key piece that helped the jury convict him within an hour. The local investigators told the court they had found traces of flammable liquid on the front porch of Willingham's house. It was Dr Gerald Hurst, a fire expert, who discovered the truth. The liquid came from the exploded canister of lighter fluid Willingham used to fuel his small barbecue – also on the front porch. Hurst's report said not a single piece of physical evidence supported a finding of arson.

Hurst, knowing early in 2004 that Willingham was on the verge of execution, wrote his report in such haste that he didn't fix the typos. A man was about to executed on the basis of junk science, his report said. Hurst rushed his report to the Governor's office. But one of the leading anti-death penalty lobby groups — the New York-based Innocence Project — has since discovered, using Freedom of Information Laws, that no one in Governor Perry's office has any record of acknowledging it, taking note of its significance, or calling attention to it within the Government. On February 17, 2004, just after he finished his last meal of barbecued pork ribs, Willingham was told Perry had refused to stay his execution.

Hurst's finding that there was no arson was confirmed six weeks ago by Beyler who was to appear on the first day of the commission's review of Willingham's execution. He is an independent arson expert hired by the Forensic Science Commission, which was created in 2005 to investigate mistakes in crime laboratories. Beyler said in his August report on the Willingham case that "the investigators had a poor understanding of fire science", and that the evidence they cited did not support a finding of arson.

Beyler was to testify before the commission in Dallas on Friday. But the newly appointed chairman, John M. Bradley, the district attorney in Williamson County and known for his hardline stance on law and order, cancelled the hearing, saying he did not know enough about the inquiry.

On Wednesday, under increasing suspicion that his office – and he – had ignored the evidence that might have saved Willingham, Perry refused to release written advice he had received from his general counsel about giving a stay of execution. Instead he called Willingham a monster.

For those who don't believe that Governor Perry or the US system would be capable of killing an innocent, it is worth considering one fact; 17 people have left death row alive because DNA testing proved their innocence after a death sentence. They served an average of 12 years in prison.

For many years, proving a dead man innocent and forcing a state to admit it has been the Holy Grail of campaigners opposed to the death penalty. They believed one case might well have changed American public opinion, which runs at 65 per cent in support of the death penalty. Sadly and perhaps perversely the US Supreme Court, in a five-four decision, ruled in June that a prisoner had no constitutional right to demand DNA testing of evidence held by police. In August, two of the Supreme Court's members, Justices Antonin Scalia and Clarence Thomas, in a dissenting opinion, nevertheless disclosed views that exist at the highest level of the US justice system. They wrote: "This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

As they see it, a man can be executed for an accidental house fire in today's America. The Constitution simply looks the other way.

At 7pm on October 20 at the Butts County state prison in Georgia, Mark McLain, 43, was lethally injected for the 1994 shooting murder of a pizza store manager during a hold-up.

According to the reporter from the Augusta Chronicle, McLain's death was unremarkable and unlamented. The only activity outside the prison was the low, steady roll of 18-wheeled trucks pulling in for a pitstop and some armed guards discussing the cool weather.

Bernard Lagan is an Australian living in New York.

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