Innocence Project shakes death row

14 prisoners have been saved from execution thanks to the work of the Innocence Project. Picture / Reuters

Cameron Todd Willingham is the first and only man executed in the United States for suspected arson after his three children, all under the age of three, burned to death at their home in Corsicana, about an hour's drive southeast of Dallas, Texas, in December 1991.

Willingham testified at his trial that he narrowly escaped the fire himself, that he tried and failed to rescue his children, that he repeatedly tried to call for help and re-enter the building, at one point smashing a window with a pool cue in the hope of reaching the children's bedrooms.

Not everyone believed him. One of his neighbours, who knew he was a drifter, knew he had trouble holding down a job and knew about his fondness for going out to drink beer and play darts, thought he hadn't done nearly enough to save his family.

When fire marshals examined the fire scene, they too began to wonder if Willingham hadn't set it deliberately. Particularly damning at his trial was the testimony of the deputy state fire marshal, Manuel Vasquez, who said from burn patterns on the wood floor and the melted aluminium threshold, as well as the way certain pieces of glass has cracked into crazy patterns in the heat, there was no way this was the result of an accident. Someone, presumably Willingham, had sprinkled fuel and set light to the building.

Willingham was duly convicted of murder and, after 12 years on death row, was executed by lethal injection in February 2004.

Now compelling evidence has emerged that Vasquez did not in fact know what he was talking about. None of his testimony has passed muster with a panel of acknowledged arson experts, which has gone over it in detail. And without his testimony, the case against Willingham is left essentially baseless.

Unlike most capital convictions, where a defendant's protestations of innocence raise the question of who else might have committed the crime, there may have been no crime, just one more ghastly element in an unspeakable family tragedy. That is what Willingham asserted as he went to his death. "The only statement I want to make is that I am an innocent man, convicted of a crime I did not commit," he said. "I have been persecuted for 12 years for something I did not do."

Thanks to the work of the New York-based Innocence Project - a team of defence lawyers who put dubious capital convictions under the microscope of modern technology - his protest is looking increasingly believable. The group commissioned a real expert's report using advances in the understanding of arson evidence which will make uncomfortable reading for the prosecution in the Willingham case. Their findings have been handed to the Texas Forensic Science Commission, which is constitutionally bound to launch its own investigation and report back to Governor Rick Perry, the man who gave the green light to Willingham's execution.

The Innocence Project's report was compiled by four of the country's leading arson experts. Their conclusion: Willingham's conviction was based on bad science, and none of the evidence should have ever led investigators to believe the fire was set deliberately. And so the stage is set for the next big showdown over the death penalty in the US. Already, the pace of executions in most states has slowed because of doubts in recent years about the safety of capital convictions. The release of death row inmates shown by DNA evidence and other methods to have been innocent of the crimes of which they were accused is steadily increasing.

The Project's lawyers have been instrumental in forcing courts to take new DNA-testing technology into account when reviewing convictions. Since 1992, when the Innocence Project began, 175 prisoners have been exonerated, including 14 who spent time on death row.

It was the Project's lawyers who first questioned the arson evidence. They assembled the panel of experts and commissioned the report. More strikingly, they were also responsible for lobbying the Texas authorities and bringing about the existence of the Forensic Science Commission in the first place.

As the Innocence Project itself put it, the release of its report "marks the first time in the nation that scientific evidence showing an innocent person was executed has been submitted to a government entity that is legally obligated to investigate cases, reach conclusions and direct system-wide reviews to determine the extent of the problem". In other words, it could be the beginning of the end of the death penalty in Texas.

It also spells political trouble for Governor Perry as he faces an election race this November. Many of the arson panel's conclusions had been reached even before Willingham's execution, by a Cambridge-educated arson expert called Gerald Hurst, who passed on his findings to the Governor's office. As he told an investigative team from the Chicago Tribune at the time: "There's nothing to suggest to any reasonable arson investigator that this was an arson fire."

But it does not seem that Dr Hurst's findings were taken seriously by either the Governor's office or the state Board of Pardons and Paroles. Barry Scheck, one of the two principals of the Innocence Project, said he had established through open records that the Hurst report had indeed been properly filed before the execution.

"Neither office has any record of anyone acknowledging it, taking note of its significance, responding to it or calling any attention to it within the Government," he said. "The only reasonable conclusion is that the Governor's office and the Board of Pardons and Paroles ignored scientific evidence and went through with the execution." The prosecution, meanwhile, presented last-minute, second-hand evidence that Willingham had confessed to his estranged wife, something she later said was untrue.

Perhaps most poignant for Willingham's surviving relatives is that, at the time of execution, a similar case was going through the Texas legal system, that of Ernest Willis, sentenced to death for his alleged role in setting a fatal fire in west Texas in 1987. Dr Hurst examined his case, too, found the forensic evidence similarly flawed and said he saw no evidence of arson. Willis was able to have his case reopened and dismissed. He walked out of death row a free man seven months after Willingham's execution.

All this adds up to a potentially explosive cocktail of political and social issues. Texans may be more attached than most Americans to the death penalty, but even they tend to draw the line at putting innocent people to death. If Texas, of all states, is forced to acknowledge it killed an innocent man, then the death penalty may be on its way to extinction. 

-  INDEPENDENT