Skip to content

Todd Willingham’s witch trial: notes and overflow

[First posted in Sep. 2010]

This catch-all page has notes and references for my posts about the case of Cameron Todd Willingham — I’ve covered the ignorant investigation, the preposterous prosection, and the despicable defense. I’m using this page to catalog and analyze the evidence and to criticize the coverage and debate. What most of us know about the case comes from evidence that’s already been processed by forensic experts and journalists. We have to decided who to trust, what material is most reliable, and what points are most significant. Most every choice is debatable. Personal and ideological bias is built into the process, too, so it’s probably true that careful, critical readers can come to very different conclusions. But I’ve found plenty of analysis and opinion that’s careless and incoherent, which makes it not debatable but wrong. A lot of it, I’m sorry to say, comes from the people who had the power of life or death over Todd Willingham.

The closest thing to raw evidence in this case is the trial transcript and the investigators’ reports, but those aren’t readily available, or at least I don’t know how to get them. There are a few sources that excerpt the primary material or summarize parts of it at length. Two substantial reports on the forensics describe the testimony of the fire inspectors in some detail, and a response from the Corsicana Fire Department summarizes a lot of the eyewitness testimony. Articles in the Coriscana Daily Sun follow the case from the fire to the arrest to the trial and beyond. As far as the state of Texas is concerned, the ruling on Willingham’s direct appeal has served as the more or less official summary of the case, and it seems to be the best guide to the evidence that really mattered.

It was the issue of “junk science” that turned the case into a national story. Experts reviewed the evidence and announced unequivocally that the forensic conclusions heard by the jury were wrong. That’s the main story in the most accessible and comprehensive accounts of the case, which were written by journalists after Willingham had already been executed. Both the journalism and the expert critiques have been dismissed as agenda driven and biased — a knee-jerk or demagogic reaction that misses the difference between having a point and having a bias.

This page is a work in progress — things may change.

The Best Sources

Journalism

There have been quite a few articles about the Willingham case. Most of them were published between September and December 2009. David Grann’s New Yorker article is the standout. It’s prodigiously researched but he pulls a coherent and vivid narrative out of the mass of material. Willingham is still mostly defined by the incriminating evidence used to put him on death row — those are about all the traces he left behind, it seems — but Grann manages to flesh him out a little bit. The long digression on the scientific revolution in arson forensics is fascinating, but there’s a lot more to the story than faulty forensics. All in all, it’s superb journalism.

Most of the themes and conclusions and many of the characters in Grann’s piece were introduced by Mills and Possley in 2004, though. As a newspaper piece, it’s more businesslike than anything in the New Yorker, but the reporting is top-notch. Since it was part of a series putting “Forensics Under The Microscope”, the focus is very much on the arson evidence. Mills and Possley started with the report Gerald Hurst prepared for Willingham’s final appeal, but they consulted with several other experts who they quote to good effect.

The Dallas Morning News article by McGonigle, Egerton, and Jacobson is framed as a more skeptical look at the claim that Willingham was innocent. I think it’s fair to say that it’s a reaction to Grann, or at least to all the editorials and blog posts that his article inspired. The attempt at balance strikes me as somewhat forced (for instance), but the piece still makes the best case I’ve seen for doubting Willingham’s innocence.

Reports

There are three expert reports critiquing the original arson investigation, and they’re very much in accord. All of them are focussed on the nature of the evidence and how it should be interpreted. No doubt the authors have their biases, but nothing they wrote is anti-death-penalty propaganda or even close to it.

The differences are largely functional. Hurst wrote in a hurry for the appeals and parole process, so he hits the high points, explaining how and why the accepted reading of the evidence had changed in the decade since Willingham was convicted. Beyler, on the other hand, wrote for a panel of forensics professionals and it seems that he leaves no detail of the testimony untouched. He starts out with a survey of the types of forensic arson evidence — how it’s treated now and how it was treated back then, before the publication and acceptance of NFPA 921. The other report — I’ll call it the Lentini report after the chairman of the committee of five that prepared it — was commissioned by the Innocence Project. It’s target audience is broader and I think for the average curious reader it’s the most accessible and informative of the three reports. I like the way it focusses on what was communicated to the jury — not only the scientific misconceptions but the way they were presented.

The links here are all PDFs:

A detailed response to Beyler’s report was prepared by Corsicana Fire Chief Donald McMullan with some unidentified assistance, I guess from a city attorney or two. For reasons they never bother to explain they treat Beyler’s criticism as an attack and work hard to shrug it off, which means they fixate an few select trees but ignore the forest. They concentrate on the testimony of Doug Fogg, presumably because he was part of the Corsicana FD. The most plausible defense they make of their old hand is that Beyler misrepresents some of his testimony at the trial, but without a trial transcript I can’t check that.

The fire chief’s response was accompanied by some nonsense from a city functionary about Beyler’s obvious bias. As Grits for Breakfast pointed out, the defensiveness is embarrassing, but defensiveness is about all the City of Corsicana has been able to muster.

The report has one virtue, though — it summarizes a lot of the eyewitness testimony, including some details that I haven’t seen anywhere else.

Web pages

The ruling on Willingham’s direct appeal

This is as close as anything comes to an official description of Willingham’s crime. In the press release issued by the Attorney General of Texas as Willingham’s execution was approaching, the “facts of the crime” are a close paraphrase of this ruling. I find it a little odd, then, that the appeal didn’t challenge “the sufficiency of the evidence to support his conviction,” so the ruling deals with “the facts of the offense” only to address a couple of specific issues related to sentencing (see the emphasized passage in the first quote below). The effect is to radically downplay the forensic evidence. Maybe this is what John Jackson, lead prosecutor at Willingham’s trial, was referring to when he wrote that he was “convinced that in the absence of any arson testimony, the outcome of the trial would have been unchanged, a fact that did not escape the Texas Court of Criminal Appeals.” It’s almost like they anticipated the controversy that would roll around in a decade or so and decided they better set aside some ammunition for the Governor and his fellow reactionaries.

The thing is that when the forensics are set aside, almost all that’s left is evidence of Willingham’s suspicious behavior and his supposedly monstrous character. A lot of it relates more to sentencing than guilt, which stands to reason since the sentence was the focus of the appeal. But the ruling does seem seem to be making the broad case that Willingham murdered his children.

There’s a lot I don’t understand about the appeals process, including how much latitude appellate judges have to re-evaluate the evidence introduced at the trial. Were the judges duty-bound to swallow all this overblown and incoherent garbage from Navarro County, or did they honestly think that it’s pretty good stuff? I’m afraid it’s the latter.

Houston criminal defense lawyer John T. Floyd is definitely more qualified than I am to judge, and what he concludes from the ruling is that “[a]bsent the testimony of the state’s fire experts, there was no real evidence that Willingham committed the crime.” If Willingham had had a attorney like Floyd, I think that would have been true. Without much of a defense, it seems that just about anything the prosecutor could dredge up counted as evidence of a crime.

The text of the ruling comes from a page created by the Prosecuting Attorney of Clark County, Ohio (my emphasis, though).

Willingham v. State, 897 S.Willingham.2d 351 (Tex.Cr.App. 1995).

Defendant was convicted of capital murder by murdering more than one person during same criminal transaction after jury trial in the 13th Judicial District Court, Navarro County, Kenneth A. Douglas, J. Defendant appealed, and the Court of Criminal Appeals, White, J., held that: (1) jury could find that defendant would commit criminal acts of violence that would constitute continuing threat to society; (2) trial court properly denied defendant’s motion for change of venue; (3) trial court properly refused to admit evidence offered by defense to impeach testimony of witness for state; and (4) trial court properly refused to charge jury on effect of parole in punishment phase. Affirmed. Clinton, J., filed opinion concurring in the result in which Maloney, J., joined and Baird, J., joined in part.

WHITE, Judge.
Appellant Cameron Todd Willingham was convicted on August 21, 1992 of capital murder by murdering more than one person during the same criminal transaction. Tex. Penal Code Ann. S 19.03(a)(6)(A). Two special issues were submitted to the jury under Tex.Code Crim. Proc. Ann. art. 37.071 S 2(b)(1) and S 2(e) and following the jury’s verdict of guilty, the trial court sentenced appellant to death. Direct appeal to this Court is automatic. Tex.Code Crim.Proc.Ann. art. 37.071 S 2(h). We will affirm.

Appellant brings four points of error for this Court to review. In point of error number one, appellant contends the trial court erred in refusing to grant his Motion for Change of Venue, in light of inflammatory statements made by the Navarro County District Attorney. Appellant asserts in his second point of error that the trial court erred in refusing to admit evidence offered by the defense to impeach the testimony of a witness for the State. In his third point of error, appellant maintains the trial court erred in its charge to the jury during the punishment phase of the trial by failing to instruct the jury on the effect of parole, as parole would qualify as a “mitigating circumstance” under the facts of this case. Appellant contends, in point of error number four, that the evidence is insufficient to support the jury’s answers to the special issues submitted in the punishment phase of the trial, particularly: (a) that the evidence is insufficient to support the finding that appellant is a continuing threat to society, and (b) that the evidence is insufficient to support a finding that mitigating circumstances would not warrant a life sentence. Appellant does not challenge the sufficiency of the evidence to support his conviction; therefore, the facts of the offense will be discussed only in reference to the error alleged in point of error number four.

Appellant contends in his fourth point of error that the evidence is insufficient to support the jury’s answers to the special issues submitted in the punishment phase of the trial. Although appellant does not argue that the evidence was insufficient to support his conviction for capital murder, a review of the facts and other evidence underlying his conviction is necessary, as this is the information which the jury considered when answering the special issues in the punishment phase of the trial. James v. State, 772 S.Willingham.2d 84, 88 (Tex.Cr.App.1989), 493 U.S. 885, 110 S.Ct. 225, 107 L.Ed.2d 178 (vacated and remanded on other issue); James v. State, 805 S.Willingham.2d 415 (Tex.Cr.App.1990) (on remand); cert. denied, 501 U.S. 1259, 111 S.Ct. 2915, 115 L.Ed.2d 1078 (1991).

Now for the evidence. The court leads with a broad overview of what must have seemed like the most significant evidence against Willingham. From the expert testimony, they take the broad conclusion that Willingham spread accelerant and lit the fire. They also cite a more incidental point from one of the experts — that accelerant was spread in places that wouldn’t normally burn, perhaps in order to impede rescuers. From the eyewitness testimony they picked Willingham’s apparent unwillingness to go back in after his children, a point that impressed the jury, too.

If only it was coherent this might be a pretty damning picture. There’s a direct conflict, though, between the eyewitnesses and the experts. If the porch and the front threshold were burning, the neighbors wouldn’t have testified that the house was merely “smouldering” and probably wouldn’t have been so self-righteously sure that Willingham could have gone back in for his children.

I’m guessing that the point about impeding rescuers stood out as an aggravating factor, but it points to another flaw in the case. If Willingham did something that’s “typically employed” by arsonists, it suggests that he’d prepared himself to commit arson and tapped into some body of knowledge about it. One thing that I find strange and unsatisfactory about the case as it’s usually presented is that the question of preparation is never even raised, much less addressed. Presumably the investigators looked into it and didn’t find anything, so they went forward on the assumption that Willingham torched his house spontaneously. One of the most fanciful bits of expert testimony, in fact, was about how the fire must have been “unplanned” because it was so “aggressive.”

The evidence adduced at trial was that on December 23, 1991, appellant poured a combustible liquid on the floor throughout his home and intentionally set the house on fire, resulting in the death of his three children. Amber, age two, and twins Karmon and Kameron, age 1, died of acute carbon monoxide poisoning as a result of smoke inhalation, according to autopsy reports. Neighbors of appellant testified that as the house began smouldering, appellant was “crouched down” in the front yard, and despite the neighbors’ pleas, refused to go into the house in any attempt to rescue the children. An expert witness for the State testified that the floors, front threshold, and front concrete porch were burned, which only occurs when an accelerant has been used to purposely burn these areas. This witness further testified that this igniting of the floors and thresholds is typically employed to impede firemen in their rescue attempts.

That’s the closest the ruling comes to showing how Willingham was implicated in the act of setting a fire, which is the only way the incident could amount to murder. Presumably more attention would have been paid to the matter if the appeal had challenged the conviction. Much of the evidence cited in the rest of the ruling was only relevant to sentencing, and if I understand right it wouldn’t have been admissible as evidence of guilt. The distinction is not always clear in the ruling, and the prosecutor was strangely oblivious to it when he was on the news justifying his case last fall.

The next batch of evidence is supposed to show that the defendant didn’t exhibit the appropriate grief or remorse. What the court cites is little more than backstabbing gossip — quick and narrowly judgmental observations from people who saw or heard Willingham doing or saying things they thought were suspicious. Just the sort of rationalization folks need when they’re hot to get rid of an undesirable in their midst. If it ever serves a legitimate purpose in court to judge a defendant’s grief or remorse, knee-jerk rumormongering is not the way to do it.

The testimony at trial demonstrates that appellant neither showed remorse for his actions nor grieved the loss of his three children. Appellant’s neighbors testified that when the fire “blew out” the windows, appellant “hollered about his car” and ran to move it away from the fire to avoid its being damaged. A fire fighter also testified that appellant was upset that his dart board was burned. One of appellant’s neighbors testified that the morning following the house *355 fire, Christmas Eve, appellant and his wife were at the burned house going through the debris while playing music and laughing. At the punishment phase of trial, testimony was presented that appellant has a history of violence. He has been convicted of numerous felonies and misdemeanors, both as an adult and as a juvenile, and attempts at various forms of rehabilitation have proven unsuccessful.

In that last paragraph there’s a shift from flimsy evidence Willingham acted like a guilty person to flimsy evidence he was a threat to society, which is the primary criterion for the death sentence that’s being affirmed. It sounds like Willingham’s “numerous felonies and misdemeanors” are going to establish his “history of violence.” But next up is Willingham’s criminal record and there’s no violent crime on it. It’s not an insignificant record, but as a justification that Willingham was so dangerous he should be killed, it’s laughable.

Maria Tassie Malowney, an Assistant District Attorney for Carter County, Oklahoma, listed the felonies and misdemeanors with which appellant has been charged and/or convicted. She explained that the synopsis of the juvenile offenses cannot be released, but that appellant has been involved in criminal activity since he was fifteen or sixteen years of age. Malowney testified that the felonies of which appellant was convicted are as follows:

1) May 1986: Second Degree Burglary Punishment: probation, placed in a Nonviolent Intermediate Offender Act

2) April 1987: Grand Larceny Punishment: two years probation and 60 days in the county jail

Additionally, misdemeanors for which appellant was convicted are as follows:

1) April 1986: Carrying a Concealed Weapon and Public Intoxication Punishment: 4 days in the county jail and ordered to pay fine and costs

2) May 1986: Entering a Building with Unlawful Intent and Contributing to the Delinquency of a Minor (supplying paint for sniffing to a twelve-year- old child) Punishment: ordered to pay restitution, 15 days in the county jail and six months probation, running concurrently

3) November 1986: Two counts of Contributing to the Delinquency of a Minor (supplying paint to a twelve-year-old child and an eleven-year-old child) Punishment: 60 days in the county jail

4) November 1988: Driving Under the Influence of Liquor and/or Drugs (substance was paint) Punishment: One year probation on the condition he check himself into an in-patient rehabilitation program for paint abuse.

5) February 1989: Shoplifting Punishment: Probation orders from April 1987 Grand Larceny conviction and November 1988 DUI conviction vacated, sent to a special boot camp program, then given a two year sentence with all but 74 days suspended on the condition he 1) complete a substance abuse treatment program, 2) attend at least one AA or NA meeting per week, and 3) take part in a urinalysis every week and a half.

To wrap things up there’s a paragraph about the “appellant’s character.” The court shames itself by citing two stooges for the prosecution as if they’re credible witnesses. One is the infamous Dr. James Grigson, a sociopathic expert on sociopaths, and his diagnosis is the crux of the character evidence. The other stooge is the jailhouse snitch who passed on a confession Willingham supposedly made through his food slot one day, when the snitch happened to be out and about (naturally the snitch offered his story with the purest intentions and no thought of reward).

If the snitch is to be believed, the police and prosecutor had the wrong theory of the crime and should have paid a lot more attention to Willingham’s wife. After all, she didn’t grieve like a guiltless person, either — she was also seen at the burned-out house listening to music and laughing with her monstrous husband. But never mind all that. The snitch’s testimony may have been too obviously bogus for this court to cite it as evidence of Willingham’s guilt, but he did mention abuse and that’s a useful prop for the rickety claim that Willingham is a “threat to society” and beyond redemption.

It’s not clear (to me, at least) how much of this character evidence would actually constitute proof of guilt. The first point, that Willingham supposedly beat his wife in order to induce a miscarriage, is what the prosecutor points to as the best evidence of guilt he produced at the trial. The appeals court doesn’t seem to see it that way. It looks an awful lot like hearsay evidence to me. Either way, it’s an enormous stretch to claim that it proves anything.

The jury also heard evidence of appellant’s character. Witnesses testified that appellant was verbally and physically abusive toward his family, and that at one time he beat his pregnant wife in an effort to cause a miscarriage. A friend of appellant’s testified that appellant once bragged about brutally killing a dog. In fact, appellant openly admitted to a fellow inmate that he purposely started this fire to conceal evidence that the children had recently been abused. Dr. James Grigson testified for the State at punishment. According to his testimony, appellant fits the profile of an extremely severe sociopath whose conduct becomes more violent over time, and who lacks a conscience as to his behavior. Grigson explained that a person with this degree of sociopathy commonly has no regard for other people’s property or for other human beings. He expressed his opinion that an individual demonstrating this type of behavior can not be rehabilitated in any manner, and that such a person certainly poses a continuing threat to society.

* * *

The judgment and sentence of the trial court are affirmed.

It’s astonishing to me that any halfway intelligent person would see this ruling as documentation of proof beyond a reasonable doubt. If you think you can explain why I’m wrong, feel free to give it a try.

Writ of habeas corpus

The ruling on Willingham’s Habeas petition is part the same compilation page as the ruling on his direct appeal. There’s not much to it, and I’m not really the person to interpret what little there is. A few things catch my eye, though.

Much of the complaint is about Willingham’s appellate counsel. I assume that refers to his trial attorney(s), since they handled his direct appeal, as well — maybe both of them but particularly David Martin. The point about jury selection procedures is interesting in light of the comments one juror made to CNN — she was surprised when she wasn’t dismissed after she made it known that she one of the main witnesses for the prosecution was an old family friend. And I wonder if the point about hearsay testimony relates to the testimony about Willingham trying to force his wife to miscarry, which came from a friend of hers. The defense witness whose impeachment was supposedly improper would presumably be the inmate who was brought in to counter the jailhouse snitch. I’ve emphasized the part with the interesting details.

Willingham v. Johnson, (N.D.Tex. 2001) (Not Reported) (Habeas).

LINDSAY, J.
After making an independent review of the pleadings; files and records in this case; the Findings, Conclusions, and Recommendation of the United States Magistrate Judge, filed July 25, 2000; and Petitioner’s Objections to Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Petitioner’s Objections”), filed August 4, 2000; the court concludes that the findings and conclusions of the United States Magistrate Judge are correct, and they are therefore accepted as those of the court. Petitioner’s Objections are overruled.

Petitioner made objections regarding the Magistrate Judge’s findings that Petitioner did not have the right to represent himself on appeal; that no conflict of interest existed between Petitioner and his appellate counsel; that Petitioner’s appellate counsel was effective, although he (counsel) chose not to raise as grounds for appeal that: 1) the trial court struck two venirewomen for cause, 2) the trial court limited Petitioner’s voir dire questions, 3) the trial court allegedly failed to follow proper jury selection procedures, 4) the trial court admitted hearsay testimony, 5) a state expert was permitted to give opinion testimony, and 6) a defense witness was allegedly improperly impeached. Petitioner further objected to the Magistrate Judge’s findings that evidence admitted during the punishment phase of Petitioner’s trial did not violate the Eighth and Fourteenth Amendments, that Texas’s appellate review of death penalty convictions is constitutional, and that Petitioner was not entitled to a jury instruction on parole.

It was obvious to the judge that most of the objections were “without merit and should be overruled without further discussion” (I’ve omitted the list — it’s everything that’s not in the next list).

The objections regarding whether Petitioner’s appellate counsel was ineffective when he did not appeal the trial court’s disqualification of the venirewomen, the limitations placed on Petitioner’s voir dire questions, and the admission of hearsay testimony appear, at first blush, to have possible merit; however, a more detailed analysis reveals that they also lack merit.

Finally there is what looks to me like a boilerplate paragraph leading to the inevitable conclusion…

Petitioner’s petition for a writ of habeas corpus should be DENIED.

The trial according to the Corsicana Daily Sun

Willingham’s trial started on Tuesday, August 18, 1992, almost 8 months after the fire. There were two days of testimony in the guilt phase and then closing arguments on Thursday morning. The jury deliberated for a little over an hour and returned its guilty verdict. Testimony continued that afternoon for the punishment phase, and on Friday morning the jury sentenced Willingham to death after deliberating for about an hour and 45 minutes.

The most complete record that’s easily accessible is the coverage in the Corsicana Daily Sun. It’s a very poor substitute for the transcript, but it’s something.

DAY 1“Capital murder trial gets underway Tuesday”

The prosecution called a number of witnesses to testify throughout the day Tuesday, including neighbors, emergency personnel and an inmate in the Navarro County Jail, where Willingham is being held on $1 million bond.

The article dwells especially on three of witnesses:

  • The deputy state fire marshal, Manuel Vasquez, was the main event but seems to have been the last on the stand. He laid out his theory of the fire, or as he put it, the truth the fire told him, complete with charts and pictures. Vasquez testified that Willingham set the fire in three places, that he wouldn’t have been able to make his way down the hall in bare feet without getting burnt, and that he should have had more severe symptoms of smoke inhalation if he’d really tried to rescue his kids like he said.

  • Johnny Webb, the jailhouse snitch, “testified Willingham confessed to setting the house ablaze in a conversation the two men had in April.”

    “He was telling me about the case all along, saying he didn’t do it, and one day, he broke down and said, ‘Man, I did it,’” Webb testified.

    (And man, if you believe that, I’m sure I can find a bridge somewhere around here to sell you.)

  • Ethel Pearl Baptist, a nursing supervisor at Navarro Regional Hospital, who commented on Willingham’s “demeanor” in the hospital, that he “seem[ed] agitated” and his wife “seemed reluctant to go to [him].”

Several neighbors testified Willingham refused to go back into the burning house the day of the fire, and that he did not appear to be coughing from the smoke.

Corsicana Fire Lt. Ron Franks, who was one of the first firefighters on the scene, testified the twins were in a front bedroom that sustained the most damage and were “burned beyond possible survival.”

DAY 2“Testimony ends in murder trial”

Vasquez’ testimony continued. He said he didn’t think the fire could have been accidental (“You can’t dilute the fire. You can try, but you can’t.”) and declared that Willingham had set it to kill the girls. Under cross-examination, he allowed that it was hypothetically possible that one of the children had spilled kerosene from a lamp and started the fire, but he didn’t think that’s what happened.

Also testifying for the prosecution, Dr. Grady Shaw said “Willingham’s hair was singed somewhat and that there were traces of soot in [his] nose and the throat.” The medical examiners who autopsied the children testified that they died of smoke inhalation.

Willingham’s attorneys were so considerate that they didn’t want to impose too much on the court’s precious time. They brought in a few witnesses, though, and one of them even testified in front of the jury! First things first, though.

Cameron Todd Willingham took the stand briefly Wednesday afternoon — outside the presence of the jury — to say that it would be in his best interest not to testify.

A witness was brought in from jail to case doubt on the snitch, but the judge ruled that his evidence was hearsay — he also testified outside of the presence of the jury. The jury did hear from Willingham’s babysitter, though. It looks like the prosecutor made quick work of her.

Defense witness, Amy Oshea, testified she babysat for the Willinghams for about two months immediately prior to the fire. Miss Oshea said she was at the Willinghams’ house almost every day during that period, and that the couple had a kerosene lantern on a shelf near the front door.

Miss Oshea, who testified she believes the defendant is innocent, said she was at the hospital room with Willingham after the fire.

Over the objection of Martin, First Assistant District Attorney John Jackson asked Miss Oshea if she was present in the hospital room when Willingham and his wife switched urine samples, Miss Oshea answered she wasn’t aware that urine samples were switched.

Miss Oshea, again under questioning by Jackson, said she would believe Willingham was innocent of the crime even if she were shown a video tape of the defendant starting the fire.

The prosecution brought in one rebuttal witness, “who said Willingham had told him he had switched urine samples with his wife while he was in the hospital immediately following the fire.” None of the articles about the case go into this business of the urine samples, so I’m not sure what its significance is.

DAY 3“Father found guilty”

This is the most interesting of the articles. The session started with closing arguments from both sides. There’s a taste of defense attorney David Martin’s rhetoric. He said the prosecution’s case was built on “the most unreasonable of theories” and he worked to undermine Vasquez and the snitch, Johnny Webb. First Martin took on Vasquez’ claim that he’d never “to the best of his knowledge” drawn the wrong conclusions from a fire.

“He is right,” Martin said sarcastically of the investigator’s claim. “He is never, ever wrong.”

Of Webb, who testified Willingham had confessed to him in a conversation the two men had in the Navarro County Justice Center, where Willingham is being held on $1 million bond, Martin said the inmate’s testimony should be considered doubtful because he suffers from post-traumatic stress disorder.

“Why would Mr. Webb tell us a lie? He’s a mental patient,” Martin told the jury. “He can’t even remember robbing a lady … but the prosecution wants you to believe it (his testimony) anyway.”

When John Jackson had his turn, he reasserted Vasquez’ ability to “read fires like a book.” His defense of Webb was more tepid — neither the prosecutor nor the jury seems to have put much store in the snitch (see Grann for a reality check on the claim that Webb “had nothing to gain by testifying truthfully” and on his testimony in general). Jackson described the defense’s theory that the children accidentally started the fire as an effort to “put the blame on [them],” which made it “the most offensive part of this case.” And of course he sent the jury off with a blunt reminder of the kind of person they were judging.

Just before sending the jury to deliberation, Jackson implored them to find a verdict of guilty, calling Willingham a “monster.”

“We tell our children that monsters don’t exist, that they are only shadows on a wall,” the prosecutor said. “Well, ladies and gentlemen, monsters do exist and one sits in this courtroom and its name is Cameron Todd Willingham.”

After the verdict was returned, the punishment phase started. Stacy Willingham was called first for the prosecution though she proved to be a hostile witness (was that a surprise?). Jackson lashed back with another shameless reference to the burned children, which shows how little he really cared about the living victims of the tragedy — nobody suffered more from it than Stacy.

The next quote is the only segment in the newspaper coverage that relates to the accusation that Willingham must’ve wanted to kill his children because he beat Stacy while she was pregnant. In the first paragraph she’s described responding to the charge, and since she was the first witness in the punishment phase, it seems that the testimony she was responding to would have come during the guilt phase. But then at the end of the quote it describes her denying a detail from the testimony of someone who took the stand later in the punishment phase. So was Stacy called back to the stand in order to do that? Or was all of the testimony that Stacy was responding to from the punishment phase, and the chronology has been fudged?

In any case, I can’t believe that the gossipy anecdotes from Stacy’s “friend” Kimberly King could be treated as serious evidence of anything. I don’t see any reason to doubt that Willingham beat Stacy while she was pregnant, since he clearly beat her when she wasn’t. Stacy probably vented to her friends about it, too. But it’s ridiculous to imagine that Willingham’s intentions were transmitted accurately through Stacy to her friend and then a couple of years later to the court. And if King or some other friend gave the same sort of testimony during the guilt phase, wouldn’t that be hearsay?

As the prosecution began the punishment phase of the trial, Jackson called to the stand Stacey Willingham, the defendant’s wife who testified her children were not afraid of their father, denied her husband beat her or tried to kill the twins while she was pregnant with them by kicking her in the stomach.

Mrs. Willingham said she was not an abused or battered wife, and told Jackson while she and her husband often fought, Willingham often has more bruises than she did after the fights.

“Me and Todd argued just like anybody else,” she said. “A lot of times, Todd got more bruises and stuff than I did.”

Jackson asked the mother of the three dead children if she had hurt the children, to which she vehemently said, “No.”

On cross examination, Martin asked the young woman is she was asking the jury to spare her husband’s life, and she said she was.

When re-questioned by Jackson, Mrs. Willingham said she did not believe her husband killed her children.

“How can you stand by a man who burned up your three children?” Jackson asked her.

“I don’t believe he did that,” she responded.

Mrs. Willingham also denied she made comments to her friend, Kimberly King of Gainesville, that her husband had beat her while she was pregnant with the twins.

Miss King later testified that Mrs. Willingham has made comments to that effect and the mother had told her that during a period when the couple was in the process of separating, Willingham told his wife that he “could take the VCR and she could take Amber, and it was an even trade.” Mrs. Willingham also denied her husband ever said that.

The other notable witness for the prosecution was “James Grigson, a noted psychiatrist known as ‘Dr. Death’ because of the numerous times he has testified in trials in which the defendant could be sentenced to death.” Grigson gave the jury some pseudo-scientific cover for their death sentence by declaring Willingham a “sociopath,” which he defined as a person “who does not have a conscious [sic], who manipulates people, who has a disregard for other’s people property and — in its most severe form — has a disregard for other human beings” (If so, then there were at least two sociopaths in the room — John Jackson and Dr. Gregson).

Rounding out the day’s ghoulish travesty was a lineup of about 20 witnesses for the defense — “most of them relatives of Willingham’s” — arguing that his life should be spared.

DAY 4Willingham receives ‘ultimate punishment’

The session started with the closing arguments for the punishment phase. After that, the jury deliberated and returned its death sentence. There’s not much of interest in the article except the defense’s desperate claim that what Willingham had actually meant to do was burn down the house without killing the kids. It was Rob Dunn making the speech instead David Martin.

Eyewitnesses and Journalists

As I said, the Dallas Morning News article by McGonigle, Egerton, and Jacobson makes the best case I’ve seen for being skeptical about Willingham’s innocence. That doesn’t mean they make an especially good case for it, though. The problem is that to be skeptical about Willingham’s innocence you have to be credulous about the eyewitnesses. Among other things, you end up with the 11-year-old fire-rescue expert.

An 11-year-old neighbor, Buffie Barbee, later testified that she found Willingham standing in his front yard screaming, “My babies are inside burning up! Help me!”

Buffie said she told him, “Go back inside and get the babies.”

What did he do? she was asked. “He just stood there,” she said.

He did, however, manage to move his car away from the burning house.

Willingham’s predicament is captured beautifully by this image of him being lectured by a child while his house is burning. Little Buffie sure gave him a taste of what he had in store! In the inverted logic of the case against him, there’s no reason to doubt her reading of the situation and every reason to doubt both Willingham’s concern for his children and his sense of what it would be like to go back inside, which was surely more realistic than hers. Instead of questioning the logic, the reporters rub it in with the remark about Willingham managing to move his car.

Coming from journalists the sarcasm is unseemly, but it’s true to the way the case against Willingham is argued. McGonigle, Egerton, and Jacobson frame their piece as an even-handed look at a debate that’s too close to call: “Substantial questions have been raised about Willingham’s guilt. But so have serious questions about his claims of innocence.” It’s not really that balanced, though. The “substantial questions” on one side are scientific and methodological. On the other side are the “serious questions” of children and self-righteous busybodies. If it’s supposed to be a serious debate about the justice system then the key quesion is whether his guilt was ever legitimately proven, not whether his innocence is questionable.

This is how the trial testimony is summarized in the Corsicana FD response.

Mary Diane Barbee testified that she was unable to convince Mr. Willingham to go back into the house and try to rescue his children. At that time, there were no flames coming out of the house, only smoke, including smoke from the lower part of the structure. Ms. Barbee also testified that Willingham told her Amber woke him up and she jumped off the bed and he couldn’t find her. He also told her that he ran out the back of the house, not the front.

Brandice Barbee, Diane Barbee’s daughter testified that she came out of her house after her mother alerted her that the Willingham’s house was on fire. She was present at the scene and never saw Todd Willingham attempt to go back into the house at any time. She didn’t notice that Mr. Willingham was coughing or injured.

Also in the Corsicana FD response there’s a summary of a police interview with Diane Barbee. The close attention Willingham’s movements and even his posture is striking. Apparently it’s obvious to a lot of people, including the appeals court, that if he cared about his kids he wouldn’t have been “crouching down.” No one has bothered to explain the reasoning, if there is any.

The part that seems more significant to me is Barbee’s aborted attempt to enter the house herself. She describes approaching just as the windows blew out, and that turned her back. It’s a little confirmation of something that’s already pretty obvious — Willingham turned to the car when circumstances changed and it seemed like it might become involved in the fire. The fact that he managed to move it says absolutely nothing about his will to save his kids. It’s a detail that people consistently latch onto, though, in order to justify their irrational conviction that Willingham wanted his kids to burn.

Mary [Diane] Barbee said on 1/4 that when she first came out of her daughter’s house [sic], she saw Todd Willingham crouched down with his arms folded across the front of his chest yelling “my babies are burning.” She says she saw smoke coming from the front of the house and it was not real thick. At that time, the smoke was coming from “lower down” on the front of the house and was not coming out around the top or eaves of the house. She then went back inside for a moment and when she came back out, Mr. Willingham had not moved.

She then ran down the street to get someone else to call 911 and then when she came back, Mr. Willingham was still holding his arms in front of him. Mrs. Barbee then says she asked Mr. Willingham “Where are the babies?” Mr. Willingham responded that “Amber woke me up and the house was full of smoke and she ran into the twins’ room and I couldn’t find them.” She says that Mr. Willingham then said “I ran out the back.” Even at this time, Mrs. Barbee says she could not see any flames, but there was heavy black smoke. She and her daughter then approached the Willingham house to see if they could get in and when they approached, a large fire suddenly bellowed out from around the front of the house and the windows blew out and she heard a crackling sound. It was at that time that Mr. Willingham ran back to his driveway in order to move his car away from the fire. She says from the time she came out of her house until the time the fire department arrived, she never saw Mr. Willingham attempt to enter the house. Mr. Willingham’s eyebrows and hair were singed and his eyes were red. He was wearing pants but his feet were white and did not appear to be burned or smoky. The next day, Mr. Willingham said that while Mrs. Barbee was trying to get help down the block, that was when Mr. Willingham “went back into the house.”

Grann launches his article by weaving the same material into a fluent narrative. This is why he gets the big bucks.

Buffie Barbee, who was eleven years old and lived two houses down, was playing in her back yard when she smelled the smoke. She ran inside and told her mother, Diane, and they hurried up the street; that’s when they saw the smoldering house and Cameron Todd Willingham standing on the front porch, wearing only a pair of jeans, his chest blackened with soot, his hair and eyelids singed. He was screaming, “My babies are burning up!” His children—Karmon and Kameron, who were one-year-old twin girls, and two-year-old Amber—were trapped inside.

Willingham told the Barbees to call the Fire Department, and while Diane raced down the street to get help he found a stick and broke the children’s bedroom window. Fire lashed through the hole. He broke another window; flames burst through it, too, and he retreated into the yard, kneeling in front of the house. A neighbor later told police that Willingham intermittently cried, “My babies!” then fell silent, as if he had “blocked the fire out of his mind.”

Diane Barbee, returning to the scene, could feel intense heat radiating off the house. Moments later, the five windows of the children’s room exploded and flames “blew out,” as Barbee put it. Within minutes, the first firemen had arrived, and Willingham approached them, shouting that his children were in their bedroom, where the flames were thickest. A fireman sent word over his radio for rescue teams to “step on it.”

Further down, Grann writes about shifts in the way witnesses remembered the fire.

The witnesses’ testimony also grew more damning after authorities had concluded, in the beginning of January, 1992, that Willingham was likely guilty of murder. In Diane Barbee’s initial statement to authorities, she had portrayed Willingham as “hysterical,” and described the front of the house exploding. But on January 4th, after arson investigators began suspecting Willingham of murder, Barbee suggested that he could have gone back inside to rescue his children, for at the outset she had seen only “smoke coming from out of the front of the house”—smoke that was not “real thick.”

An even starker shift occurred with Father Monaghan’s testimony. In his first statement, he had depicted Willingham as a devastated father who had to be repeatedly restrained from risking his life. Yet, as investigators were preparing to arrest Willingham, he concluded that Willingham had been too emotional (“He seemed to have the type of distress that a woman who had given birth would have upon seeing her children die”); and he expressed a “gut feeling” that Willingham had “something to do with the setting of the fire.”

Dozens of studies have shown that witnesses’ memories of events often change when they are supplied with new contextual information. Itiel Dror, a cognitive psychologist who has done extensive research on eyewitness and expert testimony in criminal investigations, told me, “The mind is not a passive machine. Once you believe in something—once you expect something—it changes the way you perceive information and the way your memory recalls it.”

How Eyewitnesses Contradict the Inspectors’ Forensics

There is an obvious conflict between the eyewitness observations of the fire and the inspectors’ conclusions about its origins. And this isn’t based on the witnesses reading of Willingham’s behavior, with all the subjectivity that introduces. It’s based on the straightforward and relatively objective distinction between flames or no flames. It’s odd that nobody pointed this out before Beyler — it’s a big problem, and not a subtle one.

In his report, FM Vasquez indicated that the eyewitness statements supported his theory of three origins (porch, hallway, and bedroom). In fact, the early eyewitnesses observed no flame on the porch when Willingham was already outside and they simply observed modest smoke flow from the hallway. Indeed, from her exterior view, one eyewitness could not understand why Willingham wasn’t reentering the building. This is hardly consistent with the theory of widespread use of accelerant and a rapidly growing fire. There is nothing in the eyewitness observations that suggests anything other than a local ignition in the bedroom with the fire growing to involve the hallway and reaching flashover conditions in the bedroom well after his exit from the building. The eyewitness observations are sufficient to cause the failure of FM Vasquez’s hypothesis about the fire.

John Jackson in the Corsicana Daily Sun

At the end of August 2009, Willingham’s prosecutor wrote a piece for the local paper (“Willingham guilt never in doubt”) responded to the doubts that had been raised about his case. He acknowledges that the forensics was flawed but lists seven points that, he claims, clearly establish Willingham’s guilt. I guess the logic is that there’s no way to prove the fire wasn’t arson, and if he can just show that Willingham was a liar and a really bad man we’ll have no choice but to believe that he set the fire. Jackson is now a judge, so make sure if you’re ever in Corsicana you stay out of trouble.

Jackson starts by wondering why the Daily Sun ran an AP article about Willingham when “the trial testimony [it] reported in 1991 contains overwhelming evidence of guilt completely independent of the undeniably flawed forensic report.” To clear things up, he offers some facts that are “[a]lways omitted from any examination of the actual trial.” I’m not sure what to make of the claim that these points are “always omitted.” Some of them are in Grann. Some of them aren’t in the official account of the crime, or in the Daily Sun’s coverage that he was so impressed with. Maybe Jackson was thinking that these things must not have been written about because if they had been people wouldn’t be questioning his case.

Points 3 and 6 stand out as especially foolish. In the first, he proposes that Willingham’s refusal to take a polygraph test is solid evidence of guilt. Maybe it’s not such a shock that a man can be a prosecutor and then a judge and still believe that, but it seems like he’d at least know enough to keep it to himself. The second is an especially noxious bit of rumormongering. In points 1 and 5 he seems to be overstating the depth of his evidence in a fairly obvious way. I believe that even in Corsicana several of the points wouldn’t be admissible in court as evidence of guilt (well, maybe in Jackson’s court they would be). There are detailed responses from David Grann and lawyers Nina Morrison and Victor Steinbok.

  1. The event which caused the three childrens’ deaths was the third attempt by Todd Willingham to kill his children established by the evidence. He had attempted to abort both pregnancies by vicious attacks on his wife in which he beat and kicked his wife with the specific intent to trigger miscarriages;

    Only one attempt to supposedly trigger a miscarriage is noted in the appeals court ruling, and for that one the evidence is questionable to say the least.

  2. The “well-established burns” suffered by Willingham were so superficial as to suggest that the same were self-inflicted in an attempt to divert suspicion from himself;

    It was Manuel Vasquez, the state inspector and main source of the “undeniably flawed forensic report” who suggested this. As far as I can tell, no one with the training and experience to judge is impressed by the claim. The reference to “well-established burns” is from Craig Beyler, but Jackson doesn’t bother to answer Beyler’s direct criticism: “[Willingham’s] injuries are entirely consistent with being exposed to a room fire environment with general singing of his upper body areas. Self inflicting such injuries implies intentional self-exposure to a room fire environment. The injuries could not be created by any sort of localized heat and smoke source.”

  3. Blood-gas analysis at Navarro Regional Hospital shortly after the homicide revealed that Willingham had not inhaled any smoke, contrary to his statement which detailed “rescue attempts;”

    Again it’s not clear that this claim is backed by competent judgment. It’s certainly not a smoking gun or anything close (pun intended). Possibly it relates to something Willingham admitted shortly before he was executed — he didn’t, as he claimed, go into the childrens’ bedroom to try to rescue them.

  4. Consistent with typical Navarro County death penalty practice, Willingham was offered the opportunity to eliminate himself as a suspect by polygraph examination. Such opportunity was rejected in the most vulgar and insulting manner;

    Willingham would have been a fool to trust the investigators to administer a fair polygraph test (if such a thing exists) and then call off the dogs if he passed it. His attorneys were sure he was guilty, anyway, so if they were in the picture when the offer was made presumably they’d have advised against it.

  5. Willingham was a serial wife abuser, both physically and emotionally. His violent nature was further established by evidence of his vicious attacks on animals which is common to violent sociopaths;

    There’s little doubt Willingham could be a real creep, but neither of these points is evidence that he set his house on fire to kill his kids. And Jackson seems to be exaggerating again when he alludes to what sounds like repeated acts of animal brutality. According to the appeals court ruling and the Corsicana paper, there was testimony about exactly one vicious attack on an animal. It sounds to me like another piece of overblown second-hand evidence, too — it seems that the witness didn’t see anything but had only heard Willingham tell about killing a dog.

  6. Witness statements established that Willingham was overheard whispering to his deceased older daughter at the funeral home, “You’re not the one who was supposed to die.” (The origin of the fire occured in the infant twins bedroom) and;

    This is great evidence for a witch trial. Otherwise it’s just the sort of garbage you’d expect to get by picking through a man’s odd comments in search of things that can be twisted and used against him. It’s interesting, though, that Jackson is floating a new variation on Willingham’s motive even though he has nothing to back it up but a trashy piece of gossip. The theory that he only wanted to kill the twins doesn’t actually explain anything, it just makes his failure to save the older girl more inexplicable.

    If you want to take the remark at face value, Grann suggests an innocent interpretation. But what Jackson made absolutely clear on Nightline is that he’s excused himself from taking anything Willingham says at face value.

  7. Any escape or rescue route from the burning house was blocked by a refrigerator which had been pushed against the back door, requiring any person attempting escape to run through the conflagration at the front of the house.

    Neither the police nor the fire investigators believed that there was any significance to the refrigerator blocking the back door.

Jackson made another generous offer to Willingham in addition to the polygraph, and again it was rudely refused. On Nightline, Jackson explains that Willingham reacted that way because he preferred the death sentence.

Co-counsel Alan Bristol and I offered Willingham the opportunity to enter a plea of guilty in return for a sentence of life imprisonment. Such offer was rejected in an obscene and potentially violent confrontation with his defense counsel.

The Willingham case was charged as a multiple child murder, and not an arson-murder to achieve capital status. I am convinced that in the absence of any arson testimony, the outcome of the trial would have been unchanged, a fact that did not escape the Texas Court of Criminal Appeals. While anti-death penalty advocates can muster some remarkably good arguments, Todd Willingham should not be anyone’s poster child.

The first part of that last paragraph seems to be saying that because Willingham wasn’t actually charged with arson, it wasn’t necessary to prove that he set the fire in order to prove that he murdered his children. That does seem like the kind of hairsplitting sophistry that the Texas Court of Criminal Appeals would eat right up. Jackson wraps up by batting away the remarkably good arguments of the critics with another remarkably bad argument — that it’s bad to make an example of Willingham’s case because he was a real bad person.

The Willingham case on Nightline

Nightline ran a segment on the Willingham case on 17 Sep 2010. The reporter, Terry Moran, did a good job of threading the main points of Grann’s article into a 10 minute TV story. Some of the video the inspectors made at the fire scene is included, and it’s nice to get a visual sense of the house and the fire damage. New Yorker reporter David Grann and scientist Gerald Hurst are brought on as critics and prosecutor John Jackson and fire inspector Doug Fogg defend their original conclusions. The critics have the advantage of a more forthright case. Hurst is an especially strong character — a graybeard gadfly who comes across as passionate but free of malice.

Jackson’s interview is the thread that holds the piece together and its biggest revelation. Moran asks some good questions and gets some astonishing and truly creepy answers. As far as Jackson is concerned, Willingham was a monster and that’s all you need to know to understand the crime. He’ll say just about anything before he’ll even contemplate an alternative explanation. His most outrageous claim is that Willingham’s crime was an expression of Satanism. For Jackson, the fire inspectors’ diagram of the scene was apparently a kind of Rorschach test, and what he saw was a pentagram. It’s not clear whether he’s a believer or a cynical manipulator, and I’m not sure which is worse. What I notice about the diagram is that the most distinct points on the “pentagram” are pointing towards windows. I’m not a fire scientist, but I bet the hidden message in that diagram is airflow, not Satanism (or Satan).

[In a Frontline documentary about the case that came out a few months after I posted this page, Gerald Hurst makes the same observation:

The prosecutor in this case literally believed that the burn patterns on the floor were in the shape of a pentagram, like some satanic ritual. When you actually look at the burn pattern that they drew and then you look at where the windows are- windows furnish ventilation to a fire, and all they were looking at is what we call ventilation patterns.

]

Part 1

My transcription is adapted from The Guerilla Post — I fixed a few typos, took out most of the “uh”s and things like that, and added some of Moran’s voiceover.

The piece starts dramatically — death-row images are punctuated by clanging sound effects as Moran tells about a man who was put to death for setting a fire that killed his three children. The fire inspector’s video comes on at about 0:30 — I assume the person narrating it is Manuel Vasquez. Half a minute later, it cuts to inspector Doug Fogg, who says he’s confident he came to the right conclusion, then to David Grann, who says he believes Texas executed an innocent man. As Grann walks by the big brass letters announcing that he’s at The New Yorker, Moran’s voiceover credits him with a recent story that shows “in damning detail” how the views of Fogg and Vasquez have been “DIScredited by modern science” (the two journalists have definitely found their niche — Moran is quite the theatrical narrator and Grann is at his best in print). To underscore the message, Moran turns to Craig Beyler’s report for the Texas Forensic Science Commission and how it “blasted the arson investigation as ‘nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.’”

Voiceover: And even the original prosecutor in the trial admits the foundation of his case that arson killed those children is now undermined.

Moran [2:20]: You would agree that this report from the Texas Forensic Science Commission calls into very serious question the methodology, and the way this arson investigation…

Jackson: Without question.

Moran: …that it really has a problem.

Jackson: That the techniques used were flawed.

Moran: Deeply.

Jackson: Yes…

Voiceover: But John Jackson still insists he sent a guilty man to the death chamber.

Jackson: Some of the evidence is certainly less credible than I would have liked to see.

Moran: And doesn’t that give you pause at all about sending a man to death?

Jackson: Not a man like Todd….

Voiceover: A man like Todd.

In a voiceover, Moran describes Willingham as a man “from the wrong side of the tracks” with a criminal record. “His wife Stacy said Todd had beaten her, including when she was pregnant. To the prosecutor that history of spousal abuse was key.” It wasn’t key to the appeals court or the jurors, though.

Jackson [3:18]: The best evidence to me is not the investigation of the arson, the best evidence that I believe I presented was the prior attempts of Todd Willingham to kill his children.

Moran: He beat his wife when she was pregnant, therefore he killed his children in the fire?

Jackson: I think that’s a major factor that most finders of facts such as jurors would consider.

Voiceover: Todd’s wife Stacy specifically denied Jackson’s argument in the trial and insisted that her husband, while violent towards her, would never have hurt their children.

Jackson goes away for a while. The piece cuts back and forth between Grann and Fogg, and there’s an animated reconstruction of Fogg’s theory of the fire. Moran brings up the “revolution in the scientific understanding and analysis of fire” that’s happened since the Willingham investigation. It’s illustrated with footage of one of the experimental blazes that debunked the kind of evidence used against Willingham. Gerald Hurst comes on to describe how a floor can burn without any accelerant. Then he addresses the big question about Willingham.

Gerald Hurst [7:10]: The proof that they used for arson in here is in the report and in the testimony and that is not proof. So yeah, Willingham was innocent. He was innocent if for no other reason because nobody ever showed any form of proof that this was an arson.

Back to Fogg, who dismisses all the expert criticism as an empty exercise that has nothing to do with how “the beast” (fire, that is) behaves in “the real world.” It’s funny how “the beast” hovers over this story — it comes up in the next segment, too, as pure, melodramatic superstition.

Part 2

This is where things get weird. Terry Moran must have wondered if he’d somehow ended up on the Daily Show. There’s a moment in the first exchange when he just sits there, stunned, after Jackson confirms that he really does believe he found signs of devil worship.

Voiceover [0:12]: Inside TW’s house, in the children’s room, investigators found a charred floor — proof of arson, they thought, but modern science has discredited that theory. Nevertheless prosecutor John Jackson thought those so-called pour patterns on the floor proved something else, too. That TW worshiped Satan.

Jackson: It’s perhaps a pentagram kind of a figure that some people associate with devil worship, that sort of thing.

Moran: You think that Todd Willingham poured accelerant in the shape of a pentagram, some kind of devil worship thing?

Jackson: I think that’s very possible and I think it’s very likely.

Moran [obviously stunned]: It’s likely?

Jackson: Yes.

The voiceover notes that Willingham was a heavy metal fan. Gruesome poster images flash in time with Iron Maiden’s song “The Number of the Beast”.

Moran [1:07]: Based on the fact that he liked heavy metal and Iron Maiden and liked the metal rock groups that use skulls and those kind of imagery, that makes him a devil worshipper?

Jackson: No, it does not make him, but it makes it more likely that he is a devil worshipper, or he is obsessed with, ah, Satan-like figures and that sort of thing.

Moran: And that’s evidence that he killed his children?

Jackson: Uh, that’s certainly one factor that a finder of fact could consider.

Voiceover: Jackson offered Willingham a plea bargain: Confess to killing his children, his life would be spared. Todd refused, angrily.

Jackson [1:43]: I think it’s a response to his belief that a life sentence for him would be worse than a death penalty.

Moran: Isn’t it also possible that he just was telling the truth when he said that “I will never plead guilty to something I didn’t do, especially killing my kids”?

Jackson: Uh, I don’t think it’s a very good possibility that Todd Willingham ever told the truth to anybody, about anything. He’s one of the most completely manipulative individuals that you’d ever hope to find. [dramatic pause] He’s still manipulating us from the grave!

Voiceover: John Jackson is now a senior judge in Corsicana. He stands by his case.

Moran [2:27]: They say the conclusions reached by these investigators are not warranted by modern fire science and are based on primitive, old wives tales… folklore.

Jackson: It’s not to say that they’re not correct, though.

Moran [incredulous]: You send a man to death on that?

Jackson: I’m comfortable with that.

Moran: Beyond a reasonable doubt?

Jackson: Beyond a doubt.

Moran summarizes the non-forensic evidence, but concludes that “it really boiled down to that arson evidence.” Grann reads from a letter Willingham wrote on July 26, 2001.

I could handle being here for something I did, but to be persecuted like this for nothing I shall never understand. No God who cared about His creation would abandon the innocent.

Moran recites Willingham’s final statement and the camera comes to rest on Willingham’s gravestone.

Willingham’s Big Lie

This, according to Grann, is what Willingham told Vasquez and Fogg when he was interviewed on Dec. 31. There’s also a summary of the interview on page 10 of the Corsicana FD response and it says essentially the same thing.

“The next thing I remember is hearing ‘Daddy, Daddy,’” he recalled. “The house was already full of smoke.” He said that he got up, felt around the floor for a pair of pants, and put them on. He could no longer hear his daughter’s voice (“I heard that last ‘Daddy, Daddy’ and never heard her again”), and he hollered, “Oh God — Amber, get out of the house! Get out of the house!’ “

He never sensed that Amber was in his room, he said. Perhaps she had already passed out by the time he stood up, or perhaps she came in after he left, through a second doorway, from the living room. He said that he went down the corridor and tried to reach the children’s bedroom. In the hallway, he said, “you couldn’t see nothing but black.” The air smelled the way it had when their microwave had blown up, three weeks earlier—like “wire and stuff like that.” He could hear sockets and light switches popping, and he crouched down, almost crawling. When he made it to the children’s bedroom, he said, he stood and his hair caught on fire. “Oh God, I never felt anything that hot before,” he said of the heat radiating out of the room.

After he patted out the fire on his hair, he said, he got down on the ground and groped in the dark. “I thought I found one of them once,” he said, “but it was a doll.” He couldn’t bear the heat any longer. “I felt myself passing out,” he said. Finally, he stumbled down the corridor and out the front door, trying to catch his breath. He saw Diane Barbee and yelled for her to call the Fire Department. After she left, he insisted, he tried without success to get back inside.

Towards the end of the article Grann describes Willingham’s last day, when he admitted that part of this story was false.

Earlier, he had confessed to his parents that there was one thing about the day of the fire he had lied about. He said that he had never actually crawled into the children’s room. “I just didn’t want people to think I was a coward,” he said. Hurst told me, “People who have never been in a fire don’t understand why those who survive often can’t rescue the victims. They have no concept of what a fire is like.”

Todd’s stepmother Eugenia Willingham told CNN, “He just didn’t want people to think he didn’t try…. Of course, they thought that anyway.” In fact, the lie just gave the small-minded, suspicious authorities something they could use against him. Last September the assistant prosecutor at Willingham’s trial, Alan Bristol, told Corsicana Daily Sun reporter Janet Jacobs that Willingham “clearly lied about what happened in the deadly fire.”

“None of the stories he told us panned out,” Bristol said. “He tried to make himself out to be a big hero, that he tried to go in and save the children, but there was no smoke in his lungs and he had only minor injuries.”

About a week before, John Jackson was in the same paper making essentially the same arguments about Willingham’s too-minor injuries and smoke-free lungs. The points are highly debatable, but the line of reasoning shows how Willingham made himself look worse by lying to make himself look better.

Why lab tests found traces of accelerant by the front door

Lab tests were run on samples taken from the fire scene and one came back positive for “petroleum distillates consistent with charcoal lighter” (quoting Beyler). One or two bottles of lighter fluid were found on the porch after the fire. Grann describes Hurst’s explanation for the lab result — the Lentini committee and Beyler reach the same conclusions.

After Hurst had reviewed Fogg and Vasquez’s list of more than twenty arson indicators, he believed that only one had any potential validity: the positive test for mineral spirits by the threshold of the front door. But why had the fire investigators obtained a positive reading only in that location? According to Fogg and Vasquez’s theory of the crime, Willingham had poured accelerant throughout the children’s bedroom and down the hallway. Officials had tested extensively in these areas—including where all the pour patterns and puddle configurations were—and turned up nothing. Jackson told me that he “never did understand why they weren’t able to recover” positive tests in these parts.

Hurst found it hard to imagine Willingham pouring accelerant on the front porch, where neighbors could have seen him. Scanning the files for clues, Hurst noticed a photograph of the porch taken before the fire, which had been entered into evidence. Sitting on the tiny porch was a charcoal grill. The porch was where the family barbecued. Court testimony from witnesses confirmed that there had been a grill, along with a container of lighter fluid, and that both had burned when the fire roared onto the porch during post-flashover. By the time Vasquez inspected the house, the grill had been removed from the porch, during cleanup. Though he cited the container of lighter fluid in his report, he made no mention of the grill. At the trial, he insisted that he had never been told of the grill’s earlier placement. Other authorities were aware of the grill but did not see its relevance. Hurst, however, was convinced that he had solved the mystery: when firefighters had blasted the porch with water, they had likely spread charcoal-lighter fluid from the melted container.

The Lentini report emphasizes that the only way to know if puddle patterns are cause by accelerant is to do the lab test, which is quite sensitive (check out this post with pictures of floor patterns from Lentini’s book and see if you can tell which ones were made with accelerant). The fact that no other positive samples were found in the large puddle configuration that were so central to the inspectors’ theory of the fire means that the one positive result is an equivocal piece of evidence at best.

In order to credibly identify the fire pattern as being the result of an ignitable liquid, it is necessary for a laboratory to find the ignitable liquid residue in samples of the debris. Laboratory techniques that were available to the State of Texas in 1992 were sufficient to detect quantities of ignitable liquid residue as small as 0.1 ml, or 1/500 of a standard drop [sic — I think they mean 0.1 μl].

It’s hard to pin down the details of where the ignitable liquid residue was found and where it might have come from. In some descriptions of the case, one bottle of lighter fluid was found, in other descriptions, two were found (in one piece of journalistic hackwork from the Corsicana paper, Doug Fogg looks back into the mists of time and recalls that “four empty bottles of charcoal lighter were found just outside the front door”). According to Beyler, the number is two.

The only positive test for liquid residues came from the front door threshold where petroleum distillates consistent with charcoal lighter were detected. There was evidence that charcoal lighter would have been used routinely on the porch to ignite a grill and that two fire damaged bottles of charcoal lighter had been on the porch at the time of the fire. These provide hypotheses regarding the presence of petroleum distillates at the front door threshold that involve accident spills of charcoal lighter prior to the fire and spills of charcoal lighter due to damage to the charcoal lighter containers found in the area of the porch. No basis for exclusion of these hypotheses was found.

In the Corsicana FD response, Donald McMullan argues that the lighter fluid found on the threshold couldn’t have been contamination from the porch.

I don’t have the photographs to know exactly what the attorneys and witnesses were talking about, but it appears that Assistant Chief Fogg ruled out the possibility that charcoal fluid could have been spilled on the porch and then migrated under the threshold into the hallway. The testimony seems to describe the house as being a wood frame house with a concrete front porch. Based upon the testimony, there appears to be a significant gap or hole between the front porch and the front door. Any spilled lighter fluid flowing from the front porch would have traveled down between the gap between the concrete and the doorjamb, not into the house. In any event, Assistant Chief Fogg also said he observed water (from fire fighting) on the porch flowing away from the threshold and toward the front of the porch. So the charcoal lighter fluid, if it were spilled, would have flowed away from the fire, not towards it.

I bet that even back in ‘91 Corsicana had something more advanced than a bucket brigade. I’m pretty sure that high pressure hoses could overcome the slant and the gap that Fogg observed.

When the Willingham case was hot

There wasn’t much coverage of the Willingham case outside of Corsicana while he was alive. About a year after he was executed, the Chicago Tribune highlighted the case as part of an investigative series on forensic science. Five years later that seed flowered in a burst of media attention. Craig Beyler’s report for the Texas Forensic Science Commission was released in mid-August 2009. The New Yorker ran David Grann’s feature article a few weeks later, in their Sep. 7 issue. The case became an anti-death-penalty cause celebre and an issue in the Texas gubernatorial campaign.

The Innocence Project has a page with links to dozens of articles and editorials about the case published between Aug. 2009 and Feb. 2010 (for a quick, punchy overview, try the Economist). October was the big month. A Sep. 30 column by Lisa Falkenberg in the Houston Chronicle explains why. Her sense was that the stories in the Chicago Tribune and the New Yorker weren’t much of a problem for Texas Gov. Rick Perry, but “brushing off the bruising findings of Craig Beyler proved more difficult.” The governor threw some rhetoric at Beyler but it wasn’t enough.

Then, this week, days before Beyler was scheduled to present his findings to the Texas Forensic Science Commission in a public meeting Friday, Perry made a move so blatantly political that it was stunning even for a candidate locked in a tight primary battle.

He canned the commission’s chairman, Sam Bassett, his own two-term appointee, and replaced him with a new chairman who promptly canceled Friday’s meeting on the Beyler report.

“Is it true?” the Innocence Project’s Barry Scheck asked me when I called him for comment, unable to believe it himself.

Scheck likened the move to President Richard Nixon’s infamous attempts to oust a special prosecutor investigating Watergate.

“It’s a Saturday night massacre, pure and simple,” Scheck said. “If you don’t like the evidence, you just get rid of the judges.”

Backing up a little, here’s Gov. Perry warming up for the “Saturday night massacre,” as reported in the Dallas Morning News on Sep. 20.

Governor Rick Perry today strenuously defended the execution of a Corsicana man whose conviction for killing his daughters in a house fire hinged on an arson finding that top experts call junk science.

“I’m familiar with the latter-day supposed experts on the arson side of it,” Perry said, making quotation marks with his fingers to underscore his skepticism.

Even without proof that the fire was arson, he added, the court records he reviewed before the execution of Cameron Todd Willingham in 2004 showed “clear and compelling, overwhelming evidence that he was in fact the murderer of his children.”

The next day, on the paper’s Death Penalty Blog, Michael Landauer wondered, “How does the governor think Willingham killed his kids if not by arson?” Grits for Breakfast echoed Landauer’s question and wondered if Perry’s disdain for the “latter-day experts” was of a piece with the anti-scientific attitude towards evolution of the GOP’s fundamentalist wing.

Of course in the short term the governor’s intervention in the Forensic Science Commission just made Willingham a bigger issue. In the long term I assume everyone will lose interest and Perry will shrug the whole thing off. Anyway, in the middle of October, he reaffirmed his belief in Willingham’s guilt. I love his swipe at the press for not covering the “facts” that suit him — the governor’s demagogic instincts are first-rate.

“Willingham was a monster. He was a guy who murdered his three children, who tried to beat his wife into an abortion so that he wouldn’t have those kids. Person after person has stood up and testified to facts of this case that quite frankly you all aren’t covering,” Perry told a gaggle of reporters after a speech to the Texas Association of Realtors.

Perry recently replaced members of the state’s Forensic Science Commission on the eve of hearings into that arson report. But that’s not the story, he said.

“You’re all being tied up in a process-driven story here, with all these sideshows. Look at the details of the case… we have a system in this state that has followed the procedures and they found this man guilty every step of the way. You have one piece of study that everyone is glomming onto and saying, ‘Aha!’”

Both the Chicago Tribune and the Texas Observer do some Perry debunking.

Pre-trial Publicity and the “Motive”

When Willingham was arrested and then months later, as his trial approached, readers of the Corsicana paper learned that Willingham was a violent and criminal man, and that he may have killed his children to collect a mere $15k in insurance money.

“Indictment May Be Sought for Capital Murder.” Corsicana Daily Sun. 18 Jan. 1992:

Police Chief J.J. Ryzman has said that life insurance policies of $5,000 for each child may have been a motive for the crime.

[…]

The district attorney said although Willingham has never been convicted of a seriously violent crime, the officers who went to Oklahoma found several witnesses who made statement about his violent nature.

“His long line of criminal behavior and this terrible act was sufficient for us to decide that he will be a continued threat and to try him for capital murder,” Batchelor said.

The next one is kind of funny. The paper reports on the trial judge’s ruling that coverage of the Willingham case in the media hadn’t been “so much as to make it impossible to conduct a fair trial in Navarro County.” I assume that a lot of the material the judge had ruled on was in the Daily Sun — maybe most of it. After reporting that their own reporting wasn’t going to bias potential jurors, they lay out the investigators’ theory about how Willingham started the fire in some detail, treating it not as an allegation but as an undisputed fact.

“Venue Change Request Denied.” Corsicana Daily Sun. 4 Aug. 1992:

The fire was originally thought by authorities to have been accidental but further investigation revealed lighting fluid had been used to start the blaze in at least three different locations in the five-room wood-frame structure.

Willingham was arrest Jan. 8 of this year. Police suspect the motive for the alleged crime may have been the $5,000 life insurance policies taken out by relatives in the names of each of the children.

At least they describe the bogus motive as a suspicion. They reiterated it in another story about a week later. The theory was scrapped by the time the trial started — according to Grann, the insurance policy had been taken out by one of Willingham’s grandfathers-in-law, who made himself the primary beneficiary. It’s hard to imagine, in fact, that it was still the authorities’ working theory up to a few weeks before the trial. The paper was still reporting it, though — I wonder if they were just mindlessly repeating something they’d heard back in January.

At the trial there seems to have been only a vague idea of motive, as Grann explains:

Ultimately, the authorities concluded that Willingham was a man without a conscience whose serial crimes had climaxed, almost inexorably, in murder. John Jackson, who was then the assistant district attorney in Corsicana, was assigned to prosecute Willingham’s case. He later told the Dallas Morning News that he considered Willingham to be “an utterly sociopathic individual” who deemed his children “an impediment to his lifestyle.” Or, as the local district attorney, Pat Batchelor, put it, “The children were interfering with his beer drinking and dart throwing.”

The jailhouse snitch testified that Willingham’s motive was quite different. His testimony is described in item 17a of the Corsicana FD response:

He said Mr. Willingham told him that one of the babies was injured or dead and that the fire was set to hide the injury. He also testified that Mr. Willingham told him that he didn’t go back in the house when he had the chance because he knew that he would find out that one of the children was injured.

According to Grann, the motive suggested by the snitch was not born out by the autopsies conducted on the twins’ bodies:

Webb repeated for her what he had said in court: he had passed by Willingham’s cell, and as they spoke through a food slot Willingham broke down and told him that he intentionally set the house on fire. Gilbert was dubious. It was hard to believe that Willingham, who had otherwise insisted on his innocence, had suddenly confessed to an inmate he barely knew. The conversation had purportedly taken place by a speaker system that allowed any of the guards to listen—an unlikely spot for an inmate to reveal a secret. What’s more, Webb alleged that Willingham had told him that Stacy had hurt one of the kids, and that the fire was set to cover up the crime. The autopsies, however, had revealed no bruises or signs of trauma on the children’s bodies.

Despite Webb’s glaring credibility problem, the lack of physical confirmation, and the implication that Willingham’s wife was the abuser and so, presumably, culpable in the crime, the ruling on the direct appeal blithely claims that “appellant openly admitted to a fellow inmate that he purposely started this fire to conceal evidence that the children had recently been abused.” Garbage in, garbage out.

Last fall, Jackson brought up an obnoxious rumor that implies that Willingham only wanted to kill the twins but not the older daughter, Amber. The actual motive that would account for those implications is never spelled out — Jackson and his colleagues are shameless about floating weird, unsubstantiated theories without regard for their implications.

Community Sentiment

There are a few hints about the general sentiment in the community, and I’m inclined to believe that Willingham was right when he told his stepmother that “I don’t have a chance down here.” It seems that the neighbors — the main eyewitnesses — despised him, and not without reason. It’s likely that I would have, too. And apparently the rumor mill was churning. Here’s a taste from the Corsicana FD response, item 16i.

[Willingham]hile assisting in the fire investigation, Mr. Willingham told Fireman Crenshaw that he overheard people at the funeral home saying “I wonder if he (Todd) had done this.”

Finally, a fascinating snippet I stumbled across on MetaFilter — the memories of holdkris99, who claims he was a child living near Willingham’s house at the time of the fire [it turns out this guy may not be a very reliable source of information, as he’s just (in May 2012) made a big production of hoaxing his own suicide]:

I grew up in Corsicana and lived on the 1500 Block of W 4th Street at the time of the fire. I remember riding my bike past the house on my way back home from a friend’s on Christmas Eve. By then, though only a day later and almost a week before his arrest, my friends parents had already assumed he was guilty and, apparently behind the times on execution methods in use in Texas at the time, as was I, that the electric chair was “too kind a fate for this sorry lowlife piece of maggot shit.” I started to feel uncomfortable because my friends parents seemed out of their minds with rage and left for home on my bike knowing even then that Cameron Willingham was going to die, he did not stand a chance. But as I rode past that house, I swear the air had that all too distinct smell of burned human hair and the only thing i could think about, not knowing about lethal injection, was if that was what the death chamber would smell like after the he was electrocuted, and that has haunted me ever since.

What the Jurors have Said

A number of journalists have contacted members of Willingham’s jury, starting with Mills and Possley in 2004. The reporting that’s resulted has been fairly consistent. The jurors stand by their verdict. Testimony from the forensics experts was a major factor in their decision but Willingham’s behavior was important, too. The odd piece out is a breathless write-up from CNN of an interview with a juror who said that one of the main prosecution witnesses was an old family friend. The best reporting that dwells on the analysis of jurors is in the Dallas Morning News story by McGonigle, Egerton, and Jacobson:

[Testimony of the lead fire inspector, Manuel] Vasquez … “was very important” but not the only factor in their decision, juror Dorenda Brokofsky said recently.

Jurors also were moved by the image of Willingham standing outside, near the windows of the room in which his daughters were burning up. “He didn’t do anything,” Brokofsky said.

The defense, she added, never suggested that the fire could have started accidentally. Martin did propose that 2-year-old Amber might have knocked over an oil lamp and started the fire while playing with a cigarette lighter, but “none of us could see how that would work.”

Jurors paid little attention to the testimony of a mentally ill career criminal named Johnny Webb, Brokofsky said. Webb - whom some have painted as an influential witness - claimed that Willingham, upon meeting him for the first time in the Navarro County jail, confessed.

Mills and Possley don’t say as much about the jury, but what’s there is interesting:

The jurors deliberated a little over an hour before finding Willingham guilty. In interviews, they said there was never a question.

Laura Marx said she would have found Willingham guilty even without the arson finding solely because he did not try to save his children.

There’s an AP story by Jeff Carlton that puts the jurors front and center (“Jurors Defend Verdict That Led to Texas Execution,” on the Deseret News site or HuffPo). The main flaw in the piece is Carlton’s uncritical treatment of his other primary source, David Martin — Willingham’s former defense attorney who, it seems, never refused an opportunity to badmouth his deceased client on the record. The piece starts with the observation that the questions swirling around the forensics “have done nothing to change the minds of Martin and four jurors reached by The Associated Press in recent weeks.” Never mind Martin — his opinion was old news by December 2009 when this story was published. What about the jury?

They never heard from Willingham, who declined to take the stand in his own defense.

Prosecutors, meanwhile, called 17 witnesses, including the only experts to testify — both fire investigators who told jurors arson was to blame.

“All you can go on when you are on a jury is what is put before you,” said one juror, Dorenda Dechaume, 39. “I stand by my vote — guilty.”

Carlton seems to think that Willingham’s poor showing at the trial was his own fault — later he writes that “Willingham wasn’t interested in explaining his behavior at trial.” But Martin and his co-council, Rob Dunn, had a great deal to do with what was put before the jury and also what wasn’t, including any testimony from the defendant. The quality of the defense was their responsibility, and as Mills and Possley report, they’ve been open about their strategy.

Willingham did not testify in his defense. His lawyers feared that he would not handle aggressive cross-examination very well and would not present a good image for jurors.

“To me, he was not repentant,” said Robert C. Dunn, one of Willingham’s trial lawyers. “He had this attitude and air about him that he was wrongfully charged.”

Anyway, Carlton writes that for the jury, “the expert testimony was definitive.” But other things were important, too, including the car (my emphasis).

Jurors said there were other odd details that sealed Willingham’s fate. Ronald Franks, a Corsicana Fire Department paramedic, testified he returned to the home a few days after the fire. He found Willingham, who complained that his dart set was either burned or stolen from the wreckage.

Then, Franks testified, Willingham told him investigators would likely find cologne in the floor samples they were testing. He told Franks “he had poured cologne on the floor because the children had liked the smell of that cologne.” He said he had poured it from the bathroom through the hallway to where the children were found, Franks said.

Jurors also heard from Willingham’s neighbors. They testified that as the house south of Dallas burned to the ground, he was crouched down outside, screaming. But they also said he moved his car away from the house while his children were trapped inside.

That detail chilled jurors, who inferred Willingham showed more concern for his car than his kids.

“There was evidence of a fire that was deliberate,” said juror Henry Ponder, now 81. “Not getting the children out of the house. Getting the car out of the way. It was all there.”

[…]

The jury returned its guilty verdict in 77 minutes.

“A lot of them wanted to vote right away,” Dechaume said. “Me and two other people wanted to go over the facts of the case. It was unfair to go straight in there and decide. We went through everything we could have. All I can go by is what I had seen then.”

McGonigle, Egerton, and Jacobson have one more thing from juror Dorenda Brokofsky. She told them that “she has been contacted by some news organizations that seem to have decided that Willingham is innocent. ‘They’re wanting me to say I can’t sleep at night. They want me to say I did wrong,’ she said. ‘I can’t say that.’” Indeed, a couple of weeks earlier, CNN had a piece on “A juror’s doubts”, and guess who that juror is and what she isn’t doing at night?

One person watching this case with eyes wide open now is Dorenda Lynn Brokofsky. She was on the jury in the Willingham arson trial back in 1992 and she told me today, she hasn’t slept very much since. All these years later, Brokofsky wonders if Willingham was innocent, even though she decided along with the others at the time that he was guilty.

We spoke by phone from her home in the midwest, where she moved after leaving Corsicana, where the fire took place. She dropped a couple of bombshells that left many of us here at AC360º shaking our heads.

She told me, “My dad was a fire marshall for eight years in Corsicana.” He wasn’t the fire marshall at the time of the Willingham fire, but she had a connection. And get this, she said her family was “good friends” with Douglas Fogg. Fogg was the deputy fire marshall and a key witness in the case. Fogg’s determination that the fire was arson really helped send Willingham to death row.

[…]

But back to the juror who knew Investigator Fogg. How could prosecutors, the judge, and even the defense, let a woman on the jury who was “good friends” with a key witness for the prosecution and the deputy investigator? Wouldn’t that be a mistrial? Too late for Todd Willingham now, but the juror told me, “I told them I knew Mr. Fogg but they didn’t care.”

To this day, Brokofsky isn’t sure Willingham was guilty. “When you’re sitting there with all those facts, there was nothing else we could see. Now I don’t know. I can’t tell you he’s innocent, I can’t say 100 percent he’s guilty,” Dorenda said.

“I don’t sleep at night because of a lot of this,” she told me. “I have gone back and forth in my mind trying to think of anything that we missed. I don’t like the fact that years later someone is saying maybe we made a mistake. That the facts aren’t what they could’ve been.”

Brokofsky said, “I’ve got to stand in front of my God one day and explain what I did.”

[…]

When I told the juror that arson science has changed over the years and that at least half a dozen arson experts now say the fire was not arson and not intentionally set, Brokofsky got so upset she had to get off the phone. She said she needed some time to “process this.”

The main revelation is remarkable — it’s hard to believe that a close family friend of a primary witness and investigator should have been allowed to stay on the jury. I believe the issue was raised in Willingham’s Habeas petition. I end up feeling sorry for Brokofsky, too. It can’t be that fun to be put on the spot about for jury service from 20 years ago, and the CNN reporter’s approach feels kind of intrusive and manipulative.

As far as “process[ing] this” goes, though, Brokofsky already had 5 years. This is how she responded when Mills and Possley told her that the expert testimony at the trial had come under fire:

“Did anybody know about this prior to his execution?” Dorinda Brokofsky asked. “Now I will have to live with this for the rest of my life. Maybe this man was innocent.”

(It’s odd that there would be two jurors named “Dorenda,” isn’t it? Carlton seems to be the only reporter to quote a “Dorenda Dechaume,” and I wonder if it’s an error. “Dorenda Brokofsky” is quoted in at least three different pieces.)

“No Doubts” in Corsicana

This article is the one-stop source for the way the people who investigated and prosecuted Willingham reacted to all the outside criticism. The main thing making them defensive was Craig Beyler’s report and the deliberations by the Texas Forensic Science Commission that were supposed to follow. David Grann’s New Yorker article and the pronouncements from the Innocence Project are in the mix, too.

Jacobs interviewed lead inspector Jimmie Hensley, fire inspector Doug Fogg, prosecutors John Jackson and Alan Bristol, defense attorney David Martin, and Grady Shaw, one of the emergency room doctors who worked to resuscitate Amber Willingham after the fire. They form a united front. There are no doubts that Willingham was guilty, like the headline says. He was a “monster,” not to mention a whiner.

The reporting is pretty awful, though. Like I said in my post, Jacobs was basically acting like a press agent for these guys, except if she was a good press agent I imagine that she’d have done some fact checking. She lets the contempt of the interviewees set the tone throughout. Near the end she commits what seems to me the worst of her journalistic sins, which is to sanitize David Martin’s record.

From his seat at the defense table, attorney David Martin’s job was to fight tooth and nail for Willingham. Once it was over, though, Martin became convinced his client was guilty.

Martin has given a lot of interviews and he’s never pretended that it was only after the trial that he decided Willingham was guilty. In fact, he’s been keen to disabuse reporters and readers of the romantic notion that defense attorneys believe their clients are innocent.

She gives quite a bit of space to Doug Fogg, who responds to some of Craig Beyler’s criticism of his work. There are quite a few questionable claims along the way.

  • Who’s there first?

    Doug Fogg, a Corsicana firefighter for 31 years, was the first responder to arrive at 1213 Willingham. 11th Ave. in Corsicana that Monday morning.

    According to the Corsicana FD response, “Ron Franks said on 12/30 that he was the first fireman on the scene.” Beyler’s summary of Fogg’s report elaborates:

    [Fogg] arrived after the first FD unit arrived when Lt. Franks was operating a hand line from the porch. … He relieved Lt. Franks so the Lt. could don his breathing apparatus.

    Whether or not Fogg arrived first is not significant, but the obvious error doesn’t reflect well on Fogg’s memory and/or Jacobs’ reporting.

  • The gas supply.

    The investigators searched for electrical shorts, but found none; the gas-powered space heaters were off because the family’s gas supply had been cut off at the meter; and “we didn’t find a ceiling fan. Willingham said there was one, but we didn’t find any signs of one,” Fogg said.

    The bit part played by the ceiling fan in this controversy strikes me as funny. It’s possible, of course, that Willingham conjured up a nonexistent ceiling fan, but it’s a strange and random thing to lie about. Nonetheless, it’s brought up now and then as one of the discrepancies that show how unreliable Willingham was. It seems much more probable that it got lost in the shuffle and mess. And surely the police could have asked Stacy or the owner of the house if there was a ceiling fan. As usual with these investigators it’s better to not really know when knowing would cramp the free flow of suspicion and doubt.

    But the really dubious claim in that passage is about the gas supply. No other source makes the claim that it had been cut off. The clear implication of the fire inspectors’ reports is that gas could have been flowing to the heater. The Corsicana FD response notes:

    The gas to the space heater was in the “off” position and the line was tested for leaks but none were found.

    The same thing comes up in Beyler’s summary of Vasquez’s testimony:

    [Vasquez] eliminated the space heaters as the cause of the fire because they were turned off, but provided no basis for knowing that the heaters were turned off, as he arrived at the scene four days after the fire and after significant activities on the scene had been completed.

    It’s quite clear from her conversation with Willingham’s friend Elizabeth Gilbert that Willingham’s wife Stacy Kuykendall didn’t remember the gas being cut off. She also casts significant doubt on the fire inspectors’ conclusions. This is from Grann:

    According to a tape recording of the conversation, Stacy said that nothing unusual had happened in the days before the fire. She and Willingham had not fought, and were preparing for the holiday. Though Vasquez, the arson expert, had recalled finding the space heater off, Stacy was sure that, at least on the day of the incident—a cool winter morning—it had been on. “I remember turning it down,” she recalled. “I always thought, Gosh, could Amber have put something in there?” Stacy added that, more than once, she had caught Amber “putting things too close to it.”

  • The four-can calling card.

    Evidence of accelerants was found, but Willingham had an excuse for that, too. Willingham told investigators he poured cologne on the children’s floor “because the babies liked the smell,” he blamed a kerosene lamp for any accelerant in the hallway, and said spilled charcoal-lighter fluid happened while he was grilling, Fogg recalled.

    Fogg agreed that there was a damaged bottle of charcoal lighter fluid on the other end of the porch away from the door, but the grill was in the side yard not on the porch when firefighters arrived. Fogg remembered four empty bottles of charcoal lighter were found just outside the front door.

    There’s a couple of paragraphs full of spin and misinformation. The most dubious claim is the four bottles by the door in addition to the one on the porch. A stack of empty charcoal-lighter bottles by the door is the perfect calling card for a stupid arsonist. I’m pretty sure it’s wishful remembering on Fogg’s part, though. Other sources, including Beyler and Grann, mention one or two damaged bottles on the porch but not the stack of empties. Such obviously incriminating evidence would surely have come up one of the reports, the appeals court rulings, or earlier articles about the case.

    Nothing else I’ve read suggests that Willingham made “excuses” for the presence of accelerant. According to Grann, it was Gerald Hurst who first theorized that a spill on the porch accounted for the one positive sample. During the trial, the defense raised the possibility the the fire started with a kerosene spill — that was apparently David Martin’s idea of reasonable doubt.

    The cologne story can be as suspicious as you want it to be but I’m pretty sure it’s a red herring. According to reporter Jeff Carlton, “Ronald Franks, a Corsicana Fire Department paramedic, testified he returned to the home a few days after the fire. He found Willingham, who complained that his dart set was either burned or stolen from the wreckage.” I don’t think it’s accurate to describe Franks as an investigator, though I wonder if he wasn’t sent in to have a friendly conversation with Willingham and gather what incriminating information he could. They sure got a lot of mileage out of the dart board. The cologne came up in the same conversation, summarized this way in the Corsicana FD response:

    Fireman Franks also said that after the fire, Mr. Willingham came back to his house and poured a large bottle of British Sterling cologne on the floor from the bathroom to the room in which the twins had died and said that if any more samples were taken from the floor, those samples would have cologne on them.

The hall of Todd Willingham's house after the fire.
The bed of Todd Willingham's older daughter after the fire.

The back of the hallway and bedroom of Willingham’s house after the fire. According to Vasquez’s diagram, there should be more damage in the front part of the hallway. Note how the sheetrock “wasn’t even scorched,” just like Doug Fogg said. (Click an image to enlarge. Pictures from the Texas State Fire Marshal’s office, by way of the Dallas Morning News.)

  • What happens to sheetrock after flashover?

    Beyler theorized it was a flashover, and said investigators didn’t see the difference between the intense heat of a flashover and an accelerant-driven fire. Fogg laughed at the notion.

    If it had been a flashover, it would have taken out the thin layer of sheetrock on the walls, he argued.

    “That house was box construction,” Fogg said. “The only sheetrock that came down was what was hit with water. The paper backing wasn’t even scorched.”

    This is a rare attempt to respond to one of Beyler’s more significant criticisms. I’m not qualified to referee, but I am struck by the very different perspective on sheetrock in the Lentini report (p. 14).

    Because of the chemically bound water, gypsum wallboard has the ability to absorb a significant amount of heat, which drives off the water before the wallboard experiences calcination and eventually, structural failure. Gypsum wallboard is able to withstand post-flashover conditions for a significant period of time (tens of minutes) before failure occurs, and is one of the more reliable materials used in the construction of fire-resistant barriers.

The last point is a perfect example of the difference between the people who made (and continue to make) the case against Willingham and the people who criticize it. The critics make detailed points in an objective tone and back them up with explanations and references. The defenders come back with dismissive, off-the-cuff remarks and no explanation whatsoever. Jacobs complained in a column that people “haven’t even tried to give the investigators the same benefit of the doubt that they gave Willingham and his supporters.” It seems to me that one side constantly demands the benefit of the doubt and the other doesn’t.

Jacobs is nothing if not indulgent, though. On top of Fogg’s fantasies and the unchallenged contemptuous spin, the locals also get a chance to take some knee-jerk ad hominem potshots (the first point, I guess, is more of a red herring).

Hensley came away deeply disturbed by the case, and he’s angry that anti-death penalty proponents ignore the children’s deaths in trying to make Willingham into a martyr.

Hensley also dismisses Beyler’s report, pointing out that Beyler didn’t talk to the investigators, and reading the testimony can’t replace first-person observations.

“You can find expert witnesses everywhere, and if you pay them enough they’ll testify to anything,” Hensley said. “They’re to be bought.”

“The Innocence Project is an absolute farce,” Martin said. “It’s a bunch of hype, in my opinion.”

Ventilation Paths

Judge Jackson's pentagram

Jackson’s pentagram (screen shot from Nightline)

Looking at Manuel Vasquez’s drawing of the fire scene, Judge Jackson saw a pentagram. Now that fire investigation is supposed to be scientific, someone ought to do the experiments to see if you can really make a pentagram by spreading accelerant and lighting it (maybe David Martin would like to take a crack at it — he seems to like playing with fire). Getting those straight lines and sharp points by pouring fluid on a carpet has got to be tough, though.

Accelerant can definitely leave puddle patterns after a fire (here’s some pictures), but other things make patterns, too. One thing that will obviously effect where and how a fire burns is the availability of oxygen. I believe it’s uncontroversial that the Willingham fire started in the front bedroom (if you believe the fire inspectors it was started in the hallway at the same time). One way or another, ventilation would have been a major factor as the fire intensified and spread. There is a short but illuminating discussion of ventilation paths in the Lentini report.

In addition, it is undisputed that Mr. Willingham himself created most of the initial ventilation paths. Mr. Willingham stated that he exited the house through the front door. The rear exterior door located in the kitchen was found to be obstructed by a refrigerator preventing the use of this door as an exit by occupants. Mr. Willingham stated that he broke out the two front windows on the front porch using a pool cue. This information was apparently disregarded in Mr. Vasquez’s analysis of this fire, but had significant implications with respect to any determination that “auto-venting” was the “first incendiary indicator”. Aside from the lack of attention paid by Mr. Willingham’s counsel to such inconsistencies, disregarding data that does not fit one’s hypothesis is a clear violation of the scientific method. The scientific method requires that all of the data gathered be used to test any developed hypothesis.

Whether or not the front door was open has to be a very significant detail. According to Beyler, Vasquez claimed that the door was closed, despite eyewitness accounts that indicated otherwise. And his other claims about what a “natural fire” would or would not do strike me as obvious nonsense.

FM Vasquez opined that the front door was closed during the fire. He seemed unaware that early observers saw smoke flowing from the front doorway and they did not see flames on the porch initially. Both are inconsistent with his view of the fire. He opined that accelerant was splashed onto the surfaces of the door, apparently believing that the consumption of the door could not be explained by any other mechanism. There is no scientific basis for this assertion. Doors can be consumed fully by natural fires. Returning to his mysticism he states, “The fire, itself, tells me that it’s a very aggressive fire; and, therefore, the fire was not a planned fire. It was a spur-of-the-moment fire.” Such statements are beyond belief in the context of fire investigation as an applied science.

His ideas about fire are often inconsistent with modern fire science. He opines that auto ventilation is an arson indicator. It is and has been well known that natural fires can and do break out windows.

The dramatic moment in Willingham’s fire was when the windows blew out and Willingham rushed over to move his car. That was auto ventilation and also the moment of “flashover,” which among other things, according to the Lentini report, “marks a transition from a fuel-controlled fire to a ventilation-controlled fire.”

In the ventilation-controlled phase, the size of the fire is dependent on the rate of inflow of air into the compartment. The post-flashover compartment fire is characterized by the entire volume of the compartment being filled with flames, and any unburned fuel produced within the compartment can be burned at ventilation openings (e.g. open doors and windows) where the fuel can be mixed with available air. This burning regime will produce conditions sufficient to burn and consume materials lining the compartment, such as floors, ceilings, and walls. This process can create patterns on those surfaces of the type described by Mr. Vasquez as “puddle configurations” and “pour patterns.” More importantly, these patterns can be created in compartment fires where no flammable liquids were introduced.

Manuel Vasquez’s fire scene diagram (extracted from Beyler’s report) — click to enlarge

With all that in mind, what I see looking at Jackson’s pentagram — the dark areas that Vasquez thought were “puddle configurations” and “pour patterns” — is a shape that points to the windows at the top and the left and through the door and down the hallway on the right. I’m sure the shape is influenced by other things (like the bed, which must have been good fuel) but it’s ridiculous to imagine that ventilation wasn’t a factor in shaping the burn.

In the Corsicana FD response, item 22, Chief McMullan wonders why the fire in the hallway didn’t “turn right and not left, or… burn in both directions?”

Dr. Beyler suggests that the fire may have started in the bedroom, growing to involve the hallway. Dr. Beyler doesn’t offer any support for why the fire turned right, rather than left, if it started in the front bedroom. The presence of an accelerant in the hallway is certainly some explanation as to why the fire, if it did start in the bedroom, turned right rather than left when it entered the hallway.

McMullan goes on to claim that the hall and front door were already on fire before the door was opened. To make those claims he has to do the same thing he criticizes Beyler for doing — picking through Willingham’s conflicting stories to find a few convenient details. The difference is the Beyler picks Willingham’s most plausible claims and McMullan picks the least plausible. Anyway, after the fire exploded through the windows it was much larger and hotter than it was when the neighbors first saw it, which would have been after Willingham was in the hallway (if he ever was). I bet the vast majority of the heat and fire damage was done near the end of the blaze.

And was it really necessary for Beyler to explain why the fire burned longest and hottest by the open door?

David Martin Interviewed on CNN

David Martin was the lead defense attorney at Willingham’s trial. In recent years he’s been happy to tell anyone who asks that his client was a monster, guilty as sin. Reporters for the Corsicana Daily Sun and the Associated Press gave him especially free rein to badmouth his former client. But there’s nothing like this on-air interview with Anderson Cooper on CNN. Just like John Jackson, the prosecutor he faced off against, he really cut loose when he got on TV. The biggest revelation is that he did his own lamebrained experiment to prove to himself that the fire inspectors’ were right about how Willingham torched his house.

Texas Monthly blogger Eileen Smith captured the mood.

CNN did another report last night on the Cameron Willingham case, this time with Willingham’s defense attorney, who always thought his client was guilty, so rest assured that Willingham received a vigorous defense. … David Martin is such a caricature of what people think of Texans that I was mortified watching it. Haven’t we been the posterior region of enough jokes this year, what with all the secession talk and Dancing With the Stars? And I’m not even a native Texan. So really, you guys should be extra-extra mortified.

Right from the start of the interview, you just know it’s going to be bad. For one, Martin is wearing a cowboy hat that’s about to fall off his head. And two, the guy’s drunk as a Honduran skunk.

The Burnt Orange Report surveyed the consternation in the criminal-defense blogosphere. The general consensus was that Martin’s remarks were shockingly unprofessional and contrary to attorney-client privilege. Scott Greenfield was blunt: “[H]is statements are the most irresponsible, unethical, improper I have ever heard from the mouth of a criminal defense lawyer. Outrageously wrong. Utterly disgraceful.”

The show covered several other topics that night. Here is the interview with Martin, extracted from the full transcript. I’ve corrected the spelling of several names.

Joining me now is David Martin, Willingham’s defense attorney at trial. He says Willingham was a man without a conscience.

Also with us, Steve Mills, an investigative reporter for the Chicago Tribune, who’s been following this case since 2004. Focused a lot of attention on it.

David, you always believed that your client was guilty. Now over half dozen experts have come forward to say that there is it no way the fire was arson. You still say he was guilty. Why?

DAVID MARTIN, WILLINGHAM’S DEFENSE ATTORNEY: Anderson, excuse my informal attire. We’ve been out checking cows. But it is nice to be with you. And tell me your question again?

COOPER: Well, you know, about half dozen fire experts around the country have looked at this case now and say that, you know, the evidence that was used, the arson evidence that was used simply is not accurate. That at the time people thought it was accurate.

But there was already growing evidence that, you know, arson investigations, they’ve evolved, they’ve learned a lot. And what they knew then wasn’t the case. Wasn’t accurate.

MARTIN: No. That’s not what I glean from these reports here, Anderson. I’ve got Craig Beyler’s report here that I’ve read thoroughly. And I’ve dog-eared several pages. This is one of the least objective reports I’ve ever read.

COOPER: Do you think he’s biased?

MARTIN: Let me give you an example.

COOPER: OK.

MARTIN: Well, look — look, here, page 49. I mean, Manuel Vasquez was one of the most competent experts I ever cross-examined. He was a straight shooter and an honest guy.

Look at what Beyler says: “This is supposed to be a scientific report. I’ve been a trial lawyer 25 years and for the last 20 doing nothing but complex business litigation. I have hired hundreds of experts. If a guy told me this, look, returning to his mysticism he states — referring to Mr. Vazquez, this is absurd, I wouldn’t hire a guy like this.

Here — look, here’s another page. “Remarkably, he gleaned human intent from the physical evidence.” Of course, in a criminal investigation, an arson investigation, you glean intent from the physical evidence.

COOPER: Well, let me interrupt, through. Because what a lot of people are saying is that the way evidence was interpreted back then…

MARTIN: A lot of people…

COOPER: Well, six different investigators.

Let me bring you into something, Steve. Let me bring you into this case. You’ve been investigating this case. Do you believe Willingham was given a fair trial? And his defense team did all they could and that the evidence was accurate?

STEVE MILLS, INVESTIGATOR REPORTER, CHICAGO TRIBUNE.

Well, I think the key issue here is the forensic evidence. And what we found when we investigated this in 2004 was that scientific advances in fire investigations has shown that indicators that they used back then no longer were valid. That they knew better in, you know, shortly after the fire, in fact. Those advances were in place and being distributed around the country to fire investigators. They used old wives tales and folklore rather than the real science that was at hand at the time.

Burnt carpet in Todd Willingham’s house (Click to enlarge. Picture from the Texas State Fire Marshal’s office, by way of the Dallas Morning News.)

Mills has just stated the standard position of scientific critics of the Willingham forensics. Martin is all over the place, but he makes several of his most revealing points here. First, that he did a little experiment and convinced himself that Willingham had set the fire in just the way the State’s inspectors claimed. Then he describes his approach to defense, which is to “test the state’s evidence,” and not, for instance, produce evidence of his own.

COOPER: David, what about that?

MARTIN: That is absurd. Let me tell you something…

COOPER: You say — you say you couldn’t find an expert to refute the testimony of the expert you…

MARTIN: Hey, let me tell you what we did. Rob Dunn and I, who tried this case with me, we went and bought carpet. We bought lighter fluid. We poured the lighter fluid on the carpet. We set it on fire. And when it finished burning, it looked just exactly like the carpet did in Todd Willingham’s house.

COOPER: But I mean, you were his defense attorney. Did you go out seeking people who believed him? Did you go out seeking experts who would argue or disagree with the prosecution?

MARTIN: Let me tell you, no. Here’s a gross misconception about defense — criminal defense trial lawyers. When a client tells you his story, you don’t just stupidly accept everything he says.

The role of the defense attorney is to test the state’s evidence. Vigorously cross examine their witnesses, and can they prove their case beyond a reasonable doubt? If they cannot, even if the person is guilty, he is found not guilty. That’s the role of the defense attorney.

COOPER: David, let me ask you this, if there are six — if there are six experts who have come forward saying the evidence was faulty, why couldn’t you have put one of them on the stand?

MARTIN: That is not the case. That is not what has happened at all. I’ve read this report. I’ve looked at all of evidence. Not one single person that you cite has ever said this is what caused the fire.

I was in the house. I talked to the cops. I talked to the firemen who were there very first on the scene. I looked at the pictures. When you walk through that house, the children’s bedroom was set aflame, obviously, by an accelerant.

COOPER: David, I’ve got to tell you, you sound — you sound like the sheriff you once were and not a defense attorney.

COOPER: No, I don’t. I wasn’t a sheriff. I was a defense attorney. I represented hundreds of criminal defendants. I won lots of criminal cases. I’ve been a trial lawyer for 25 years.

Cooper was apparently confused about Martin’s past — he wasn’t a sheriff, he was a state trooper. He gets Mills in again and Mills describes talking to the expert Martin hired and finding that he regretted his conclusions about the Willingham fire. That really gets Martin huffing and puffing. He challenges the audience to prove to themselves that Willingham was guilty. All you need is lighter fluid, a carpet, and a match — no expert required.

COOPER: OK, Steve, let me bring you in. Steve, let me bring you in.

MILLS: Sure. In fact, Mr. Martin and Mr. Dunn did contact a fire expert up in Dallas. And that expert thought that Mr. Vazquez and Mr. Fogg were correct. We tracked him down when we did our investigation. He had great regret that he had done that. He understood now that the science had changed, had advanced, and he made a big mistake.

MARTIN: Absolutely wrong.

COOPER: Go ahead, Steve.

MARTIN: This is ridiculous. This is absurd. Look, let me tell you something. You take lighter fluid, anybody in the audience, you pour it on a carpet and you set it on fire, it looks just like those pictures. There was no question whatsoever that he was guilty.

But, look, the defense lawyer doesn’t have to believe the client. You test the state’s evidence. You read the record. We tried that case vigorously. Was it nine appellate courts that looked at it?

COOPER: All right.

MARTIN: This is an absurdity and Mr. Beyler’s report, I’ve read it in its entirety, and this is not a clear-eyed, objective report.

COOPER: Steve, what do you make — what do you make — Steve, what do you think of these arson investigators who have come forward, of Beyler and the others?

MILLS: I think it’s close to eight or nine investigators have looked at this. Fire scientists have looked that since. And all of them have…

MARTIN: Dude, name them. Name them. Besides Beyler. Name them.

MILLER: Gerald Hurst, John Lentini…

MARTIN: Who are they?

MILLER: John DeHaan…

The Willingham-case rearguard has a standard move when a discussion of evidence isn’t going their way — start talking about what suspicious creep the man himself was. Martin does a jump-cut from reiterating the inspectors’ theory about the fire to Willingham’s inappropriate drinking and shopping after the fire, then gets offended when Mills calls him on it.

MARTIN: OK. What — did anybody ever say here’s what caused the fire?

The kids’ room was set on fire. The front hallway was set on fire. There’s a refrigerator in front of the back door.

Look, the night after these kids died, he’s down at the mudhole, which is the Mustang Club. He brought all the people that contributed to him I don’t know how much money because his kids had died, he’s buying a new dart board. He’s buying a new pair of boots. He’s buying rounds for the house.

COOPER: OK.

MARTIN: That’s what we’re faced with in the trial of this case. That is the evidence that the jury hears. And that is indicative of guilt. And that’s why they found him guilty, I think, in less than 30 minutes.

COOPER: Steve…

MARTIN: But what?

MILLS: I don’t think anybody is nominating him for husband of the year. But that’s not what he was executed for.

MARTIN: Well, you’re way off topic. You are way off topic.

COOPER: No, no, but David — David, you’re…

MARTIN: We’re talking about the evidence presented.

COOPER: David, you brought in evidence, the fact that he was buying drinks for somebody. He could be a jerk and respond badly to something. That doesn’t make him guilty.

MARTIN: No, no, no. You just wait just a minute. Wait a minute, he told four different stories. Now, look you represent — I was appointed to represent him.

COOPER: Right.

MARTIN: And when I try a case, criminal case, civil case, I test the state’s evidence. I thoroughly, vigorously cross-examine.

Things have pretty much degenerated at this point. Martin brings up his carpet-burning experiment for the third time and is offended at the suggestion that he’s not an investigator — he’s a trial lawyer, so of course he’s an investigator! He also bridles at the suggestion that Willingham wanted to get another lawyer.

COOPER: David, what do you make of the fact of what Steve mentioned, that he’s talked to the guy, the investigator you talked to, who at the time supported the evidence.

MARTIN: Well, I — I haven’t seen that.

COOPER: You what?

MARTIN: OK.

MILLS: In fact there — in fact, there…

MARTIN: Give me the guy’s phone number and let me call him.

MILLS: Officials from the fire marshal’s office also agree that the science has changed. Nearly every — nearly every reputable fire scientist around the country agrees with this.

Now they don’t say what caused the fire. They can’t tell at this point. It’s too late. The evidence has been destroyed. But what they point out is that the indicators that the investigators used at the time, Vazquez and Fogg…

MARTIN: The indicators? Look, you pour lighter fluid on a carpet and you set it on fire, it looks just like…

COOPER: David, David, you’re not an investigator. You’re not an arson expert. So the idea that you want to say…

MARTIN: No, I am an investigator. I’m the trial lawyer. I’m the trial lawyer. I put on the evidence. I investigate. I talk to the witnesses. I examine the evidence. I dig the thing to the very bottom of the case and I present…

COOPER: Why did your client then try to get you off the case and try to get another attorney?

MARTIN: That’s absurd. When did he ever try to get me off the case? That is ridiculous.

COOPER: Didn’t he ultimately get another attorney?

MARTIN: No. If he’d wanted another attorney, the county of Navarro, Texas, would have paid for another lawyer.

COOPER: Well, Steve, he did get another lawyer, didn’t he?

MILLS: He had another lawyer on appeal.

COOPER: On appeal.

MILLS: On his final appeal.

MARTIN: Well, yes, he had another lawyer on appeal. I’m not the appellate lawyer. I’m the trial lawyer. I tried the case.

COOPER: All right. We’re — we went over time. But it was a great discussion. I appreciate both of you guys coming on. David Martin and Steve Mills. We’ll continue to follow it. We do appreciate both your expertise. Thank you.

MARTIN: Let me know.