Hurst was not just a prominent expert witness. Since the 1990s, people like him and Lentini had been revolutionizing the science of fire analysis through advanced chemical analysis and complex experiments in which they set fires and then carefully monitored and correlated the results. The results were often surprising and contradicted long-held conventional wisdoms about the differences between set fires and accidental ones. Hurst had been instrumental in having charges dropped or convictions reversed against ten people accused of arson.
He and Lentini both felt that arson investigation had grown up as a set of untested beliefs, passed down from one investigator to the next, without any real scientific correlation. This was understandable, Lentini explained, because most investigators were firefighters, not scientists: “Extinguishing a fire and investigating a fire require two different skill sets and two different mind-sets.”
Comfortable from royalties on his various patents and inventions, Dr. Hurst agreed to look at the Willingham case without charge. Only weeks before the execution date, Reaves sent him all relevant materials.
The Willingham case reminded Dr. Hurst of the 1990 fire at the home of Gerald Wayne Lewis on Lime Street in Jacksonville, Florida. Six people had perished in that fire, and Lewis, thirty-five years of age with a history, like Willingham, of spousal abuse, was charged with intentionally setting the fire. Lewis had insisted the fire started with his young son playing with matches on the couch. Also like the Willingham case, several witnesses thought Lewis was acting inappropriately around the fire and was slow to seek help. The prosecution called in several arson experts, including Lentini and John DeHaan, an arson expert from the California Department of Justice who would coauthor three arson textbooks with my former FBI colleague Dave Icove. They all noted the telltale V-shaped burn patterns and other evidence of the use of accelerants. In his article, Grann quoted Lentini as saying, “I was prepared to testify and send this guy to Old Sparky.”
As Grann related, with fire department sanction and the prosecution willing to foot the $20,000 cost, Lentini and DeHaan devised an elaborate experiment at the house next door, nearly identical to Lewis’s, which was slated to be torn down. They furnished the house as closely as possible to Lewis’s and re-created the fire exactly, even down to the same model sofa. Everything was identical, except for one critical detail: they used no liquid accelerant, merely setting a match to the living-room couch. The idea of the experiment was to be able to show the jury that Lewis was lying, by showing the difference between the two fires. They put in temperature sensors, carbon monitors and video cameras.
The investigators were shocked and stunned by the results. The experimental “accidental” fire reached flashover—the point at which a burning object gets so hot that it sets everything else in the room on fire—just as quickly as an accelerant-fueled blaze would have. The critical point for fire scientists and investigators is that once that happens, it is no longer fuel that controls and determines the direction of the fire; it is air supply, or sources of ventilation. It turned out that flashover left burn patterns that looked just like pour patterns from gasoline or other accelerants.
The Lime Street experiment proved that a flashover in one room could cause a flashover in an adjacent room, and the resulting burn patterns are indistinguishable from pour or puddle patterns.
In an admirable display of courage and responsibility, prosecutor Frank Ashton moved to have the charges against Gerald Lewis dismissed. His eloquent argument acknowledged that it was “horrible to take somebody who is totally innocent and to try them for a crime because there is some circumstantial evidence that they might be guilty, and convict them of it and send them to death row.”
He went on to observe that by the time a case gets to a jury, the defendant “has two strikes against him” because the police have arrested him and the prosecutor has charged him. “So you run a great risk of having an innocent man convicted.”
All in all, the course of the two fires was identical. Lentini suddenly realized that much of what had been accepted for decades as fire science was assumption. “Witchcraft, really.”
“This was my epiphany. I almost sent a man to die based on theories that were a load of crap.”
Gerald Hurst had similar feelings about much of what passed for arson investigation in the early years of the twenty-first century. He concluded that the fire path at the Willingham home, rather than being caused by accelerants, had been caused by ventilation from the front door when Todd escaped and left it open. Then, when the fire reached flashover in the front bedroom and the windows blew out, there was an entirely new source of air. The supposedly pentagram-shaped pattern the original inspectors thought they had seen actually represented the burn patterns created by the air supply from the five windows in the room!
Todd’s account of running down the hall in his bare feet was totally consistent with the evidence, Hurst concluded. Since he had opened up the ventilation path with the front door, the hallway would not have been on fire yet, and the floor would have been the last element to burn since heat travels upward. Even the smoke fumes and carbon dioxide would not have traveled fast enough to do him serious harm, a revelation that came out of the Lime Street fire investigation and its follow-up.
Even the chemical detection of accelerant on the concrete slab of the front porch had an innocent explanation, Hurst realized. Photographic evidence of the house before the fire showed a charcoal grill and a can of lighter fluid were on the front porch. Finding no evidence of “accelerant,” therefore, would have been more surprising than not. By the time he had finished his analysis, Hurst had refuted every one of the original investigators’ twenty points supporting an intentionally lit fire. His two most likely causes were one of the three space heaters or electrical wiring.
“Todd Willingham’s case falls into that category where there is not one iota of evidence that the fire was arson,” he declared on the Frontline program. “Not one iota.”
By the time Walter Reaves received Hurst’s report, it was less than a week until the execution. He immediately sent it to Governor James Richard “Rick” Perry and the Texas Board of Pardons and Paroles, and filed a series of emergency motions claiming legal and factual innocence. With only four days remaining, Reaves got word that the fifteen-member commission had voted unanimously to deny Willingham’s petition for relief. Reaves and Hurst were shocked. Since hearing proceedings were closed, there wasn’t any way to tell whether they had rejected the report or hadn’t even bothered to read it. Stacy’s brother Ronnie filed an affidavit in Navarro County Court stating that during her prison visit, Todd had confessed to her. Todd adamantly denied it, but the damage was done. Once again, the state and U.S. Supreme Court refused to act. Governor Perry turned down his plea for a stay, choosing to ignore the Hurst report.
Todd, who had started to have some hope, prepared to face his own death.
I’m no fire scientist, so it would be foolish for me to come to an independent conclusion without scientific evidence. But while the evidence presented at trial may have seemed compelling, when a new analysis, based on state-of-the-art science and presented by a leading world expert surfaces, there is no good reason for not paying attention to it. What possible criminal justice value could be served by not taking the amount of time necessary to evaluate the report properly? Cameron Todd Willingham had been on death row for twelve years. Another month or two or three would make very little difference to authorities, but it might mean all the difference in the world for one individual and his family.
The courts, the pardons board and the governor didn’t see it that way.
On February 17, 2004, Todd met with his parents for the last time. He did have one confession to make—one that had been bothering him for all the years since the fire. Contrary to what he had reported, he did not actually make his way into the children’s room to try to rescue them. The fire there was just too intense, so he rushed outside to try to get to them from the outside. He had
maintained the fiction for so long because he didn’t want people to think he was a coward. Hurst and Lentini both later acknowledged that anyone who has never been inside a fire has no concept of what it is like to face flames and try to go through them. That is why you don’t hear more about people rushing triumphantly out of burning buildings carrying loved ones.
At 4:00 P.M., Todd had his last meal of barbecued pork ribs, onion rings, fried okra, beef enchiladas and lemon cream pie. Not resisting, but refusing to be an accomplice in his own execution, he lay down, forcing prison guards to carry him to the execution chamber. He was strapped onto the cross-shaped table and a needle was inserted into his arm. As he looked out through the glass window to the viewing area, he saw Stacy.
When the warden asked him if he had any last words, he replied, “The only statement I want to make is that I am an innocent man convicted of a crime I did not commit. I have been persecuted for twelve years for something I did not do. From God’s dust I came and to dust I will return, so the earth shall become my throne.”
Then he went off on Stacy in extremely vitriolic and explicit language, stating that he hoped she “rots in hell,” presumably for refusing his burial request and claiming he had confessed to her. The lethal injection began at 6:13 P.M. Seven minutes later, he was pronounced dead.
After the execution, Todd’s parents were finally allowed to touch him at the funeral home. His body was still warm. According to his instructions, it was cremated and his ashes were secretly spread over his children’s graves.
Some have suggested that Todd’s final rant against Stacy demonstrated the way his mind actually worked and the violence of which he was capable. But no statement makes sense outside its full context. Facing immediate death and feeling I have been publicly betrayed by a person I have counted on, I think I, too, might have said something similar if I had been in his shoes.
As with Roger Coleman, the controversy did not cease with the defendant’s death. Reporters for the Chicago Tribune asked Lentini and other fire experts to review the evidence in the Willingham case. All four agreed with Hurst.
In 2005, the state legislature created the nine-member Texas Forensic Science Commission under the leadership of chairman Sam Bassett, an attorney from Austin. Its charge was to review possible errors in the gathering and analysis of scientific evidence for trial. It remained virtually unknown until 2008, when it responded to a request from the Innocence Project, led by Professor Barry Scheck, of Benjamin Cardozo School of Law in New York, and took on the Willingham case. After reviewing the evidence, the commission solicited an independent report from Dr. Craig Beyler, of Baltimore, a Harvard- and Cornell-educated engineer considered one of the top fire experts in the world. Beyler agreed with Hurst and Lentini that there was absolutely no factual basis for concluding the fire was set. He tore into the evidence and procedures presented at trial, stating that the original investigators had no understanding of flashover and ignored scientific methodology, even that which was already established at the time.
As this was happening, two members of Governor Rick Perry’s staff asked Bassett to a meeting during which they delivered a message in no uncertain terms: The review was a waste of state time and money and should be halted. Bassett refused.
Just as the commission’s report was to be issued, Governor Perry appointed three new members and fired Sam Bassett. According to England’s Guardian newspaper, [The Innocence Project] likened the action to Richard Nixon’s dismissal of the Watergate prosecutor in the so-called “Saturday night massacre.”
During the 2010 Republican gubernatorial primary, Senator Kay Bailey Hutchison, who was challenging Perry for the nomination, accused him of “trying to ramrod a covering-up.”
Perry countered through a spokesman that critics “should just say so” if they disagreed with the death penalty for a man who had killed his three children, beaten his wife, had been convicted and had his conviction upheld in various courts. And I’m sure many Texans would think such a man ought to be executed. I know that as a law-and-order professional I certainly would.
But the real point was made by John Lentini in the Frontline film:
“The State of Texas executed a man for a crime that they couldn’t prove was really a crime. And the evidence says, this is an accidental fire. And if it was an accidental fire, it doesn’t matter how many posters of Iron Maiden Cameron Todd Willingham had on his wall, or Led Zeppelin, or whether he liked to play darts or drink beer, or whether he smacked his wife around. It only matters that a fire was not really a set fire.”
In Bassett’s place, Perry appointed his political ally John Bradley, the district attorney for Williamson County. The Texas Tribune characterized Bradley as “an outspoken conservative with a tough law-and-order reputation.” When challenged, according to the Tribune, “Perry said he simply replaced commissioners whose terms had expired, and he rejected the work of those who had questioned the arson findings as that of ‘latter-day supposed experts.’ ”
“Supposed experts?” Excuse me, Governor. How about taking a leaf from Virginia governor Mark Warner’s playbook with the Roger Coleman case? I find this statement from the chief executive of the state with the most executions breathtaking in its insensitivity and obtuseness. Three giants of the field independently found no basis for a claim of arson. If that were true, it not only meant Todd Willingham was innocent, it meant no crime had been committed. Justice is not a political game; it is a search for truth. This was not a commitment to toughness on law and order; this was a close-minded attempt to avoid confronting a miscarriage of justice in its most blatant and egregious form. It is not surprising that this same governor, while campaigning for the Republican nomination for president in 2011, characterized evolution as a theory that’s “got some gaps in it,” and believes “intelligent design” “should be presented in schools alongside the theories of evolution.”
If this is the standard that is to be used to review scientific evidence in criminal cases in the state of Texas, we can expect a lot more tragic fiascos like Willingham’s.
While on the commission, Bradley called Willingham “a guilty monster”; the DA was replaced when the Texas Senate refused to reappoint him. Bradley was replaced by Dr. Nizam Peerwani, a medical doctor and medical examiner of Tarrant County who seemed to have a respect for science.
The commission has already acknowledged flaws and mistakes in the Willingham investigation. Whether they will deal with his actual innocence is an open question.
The Willingham case, unfortunately, is far from an isolated incident. All over the country, John Lentini and his associates are testifying in cases of fires that were deemed arson, against modern scientific standards.
For people in my line of work, there are a lot of reasons why a particular case might haunt you. It might be that an UNSUB was never caught and a killer was not brought to justice. It might be the especially hideous nature of the crime itself—the sadism and brutality evidenced by the crime scene. It might be that the victim was a child and you can’t bear to imagine what you would do if it was your child. It might even be that the killer got off on a legal technicality, sloppy police work or a botched investigation. But in terms of the criminal justice process itself, a case like Cameron Todd Willingham’s is about the most difficult to deal with.
Throughout my career, I’ve often been taken to task—face-to-face, around the Bureau and in the media—for my so-called cockiness and overconfidence in dealing with local law enforcement agencies. It’s been said that I’m a loose cannon and a risk taker, though I would argue that those risks have all been extremely calculated ones. I have been called a publicity hound who “went Hollywood.” I’ve heard jokes like, “The most dangerous action you can take at Quantico is trying to get between John Douglas and a camera.” None of this went over big in the old Hoover-dominated “just the facts, ma’am” FBI.
I neither deny those charges nor regret the actions that prompted them. Starting the operational prof
iling program when I did, I had to “go Hollywood” and appeal to the media, promote the program to get us on the map. I’ve always said one of the smartest things I did was cooperate with Thomas Harris when he wanted to come to my unit to research Red Dragon and Silence of the Lambs, because it led to the Jonathan Demme Academy Award–winning feature film. That helped put us on the map to as great an extent as any success we had with a real case, such as the Atlanta Child Murders or the “Trailside Killer” in San Francisco.
But the reason a case like Willingham’s troubles me so much is that, had it been brought to us, I fear we might have blown it. When my unit provided a written profile, we always included a paragraph similar to this:
This analysis is based upon information available at the time this report was prepared and assumes that the information provided was obtained through a comprehensive, thorough, and well-planned investigation. Should any additional information or case materials become available at a later date those materials would be reviewed in order to determine whether they are germane to issues discussed herein. Subsequent to such a review, certain aspects of this analysis may be subject to modification or change.
In any criminal case, these written analyses would be discoverable by the defense, so there is nothing secret about this; it is not something we hide. It is simply a statement of fact: We can only work with what we’re given.
Had the local police assured me they were solid with the arson findings, I’m afraid we might have been led, like most everyone else was, to interpret Todd’s background and behavior after the fire as evidence of guilt. In many of the cases my unit and I worked over the years, our profiles and criminal investigative analysis did not lead to a prosecution or identification of an UNSUB, and I’m okay with that. You don’t bat a thousand in this business; and in almost all of those instances, I would still say that the profile was correct, even though it didn’t lead to an arrest. And in the many cases in which a suspect was already in custody and we were asked to either confirm or redirect an investigation, I think our track record is pretty damn good.
Law & Disorder Page 9