Will the Willingham-Arson Report Go Far Enough?


Dave Mann

I expect quite a scene tomorrow morning when the Texas Forensic Science Commission convenes at a hotel near Dallas’ Love Field.

The nine commissioners plan to, at long last, conclude their two-year investigation into the infamous Cameron Todd Willingham case. After several starts and stops, lots of political wrangling and bureaucratic maneuvering, allegations of a Rick Perry cover-up and one national scandal, we may actually see a final report tomorrow on the quality of the forensic arson evidence.

The commissioners will discuss what their report will say in open meeting (they haven’t always been so open with this inquiry). Willingham’s family will be there, and likely some anti-death penalty activists. So will Barry Scheck of the New York-based Innocence Project, which first requested the Willingham investigation back in 2006, and probably a throng of reporters.

(I’ll be at the meeting in Dallas tomorrow and will chronicle the goings-on throughout the day in this space and on Twitter @ContrarianDave. The Innocence Project will broadcast the meeting live at this site.)

It’s been more than six years since Willingham was executed for starting a 1991 house fire that killed his three children. The forensic evidence of arson has since been disproved. It’s likely the fire was accidental, and Willingham may have been innocent. (You can read the history of the case here and here.)

The commission’s report won’t be the final word on Willingham, but I’m very curious to see the final report.

If done right, it could be a landmark document.

Not because it will declare Willingham’s innocence or guilt. It won’t. That was never in the commission’s purview, and it’s almost impossible to say with any certainty whether Willingham was guilty or innocent. We’ll probably never know for sure.

Rather, the commission was charged with investigating the forensic arson evidence used to convict Willingham (and Ernest Ray Willis, whose case often gets overshadowed in all the hub-bub).

The commission has already declared—in a preliminary finding in late July— that forensic arson evidence against Willingham was “flawed.” They also concluded that the fire investigators in the case weren’t professionally negligent because they did the best they could at the time. (That’s open for debate, though, there’s no doubt the field of fire science was considerably less evolved in 1991.)

At this meeting, the commissioners will decide how much detail they’ll add into the final report about that flawed evidence. Will they leave it vague? Or will they go point-by-point and describe exactly which pieces of arson evidence were flawed—from the pour patterns on the floor, to the warped thresholds, to the crazed glass, to the melted bed springs. All of those supposedly indicated arson (because the fire had burned hot and fast from gasoline.)

We now know that’s not true. All that “evidence” can occur in an accidental fire. We also now know that accidental fires burn just as hot and just as fast as intentionally set fires. Nine national experts have concluded that the physical evidence against Willingham was bogus. (And yet, the Texas State Fire Marshal’s office is standing by its investigation in the case.)

A draft of the final report—circulated on Sept. 10—isn’t encouraging. It contains almost no detail about the flaws in Willingham’s case. The report concedes that crazed glass “no longer has any value in evaluating a fire.” But brushes off the rest of the discredited evidence thusly: “In other respects, the changes to those indicators are less dramatic.”

The report absolves the original fire investigators in the case for not knowing any better in 1991. But Willingham wasn’t executed until 2004. By then, many people, including the State Fire Marshal’s office, did known better—that the evidence against Willingham was wrong—yet no one spoke up.

Scheck and the Innocence Project contend the Fire Marshal’s office had a professional obligation to review its old cases and to rectify its mistakes.

The draft report doesn’t address any of that.

The commissioners will have a chance to add more detail to the final version tomorrow.

“Our claim is not a hunt for someone to blame,” Scheck said in a statement, “but for identification of wrongs that must be remedied.”

That’s why the Willingham report matters so much: There are many other mistakes that still need fixing. Perhaps hundreds of people have been wrongly convicted of arson.

The same discredited pieces of evidence that sent Willingham (and Willis) to death row have been used to wrongly imprison hundreds of others.

Many of them are still in prison. People like Curtis Severns, Ed Graf and Alfredo Guardiola—whose cases the Observer investigated last year.

A report from a state commission that details which pieces of evidence are flawed and that pushes the Fire Marshal’s office to review its past cases could help those innocent people trying to overturn their arson convictions.

Prosecutors certainly have used crazed glass and pour patterns and melted bed springs in other cases. A detailed and strongly worded report from the commission denouncing those pieces of “evidence” could begin to reverse those injustices.

Tomorrow we’ll find out if the commissioners will go that far.