Just 88 minutes before the February 2004 execution of Cameron Todd Willingham, Gov. Rick Perry's office received by fax a crucial arson expert's opinion that later ignited a political firestorm over whether Texas, on Perry's watch, used botched forensic evidence to send a man to his death.
In a letter sent Feb. 14, three days before Willingham was scheduled to die, Perry had been asked to postpone the execution. The condemned man's attorney argued that the newly obtained expert evidence showed Willingham had not set the house fire that killed his daughters, 2-year-old Amber and 1-year-old twins Karmon and Kameron, two days before Christmas in 1991.
On Feb. 17, the day of the execution, Perry's office got the five-page faxed report at 4:52 p.m., according to documents the Houston Chronicle obtained in response to a public records request.
But it's unclear from the records whether he read it that day. Perry's office has declined to release any of his or his staff's comments or analysis of the reprieve request.
A statement from Perry spokesman Chris Cutrone, sent to the Chronicle late Friday, said that “given the brevity of (the) report and the general counsel's familiarity with all the other facts in the case, there was ample time for the general counsel to read and analyze the report and to brief the governor on its content.”
A few minutes after 5 p.m., defense lawyer Walter M. Reaves Jr. said he received word that the governor would not intervene. At 6:20 p.m. Willingham was executed after declaring: “I am an innocent man, convicted of a crime I did not commit.”
Summaries of gubernatorial reviews of execution cases previously were released as public records in Texas, most recently under former Gov. George W. Bush. Yet Perry's office has taken the position that any documents showing his own review and staff discussion of the Willingham case are not public — a claim the Chronicle disputes.
Without those records, the question of how much — or how little — Perry considered the newly obtained evidence in his decision to proceed with execution will remain forever a state secret.
Perry has presided over more than 200 executions during his time as governor; Willingham was one of three people put to death in February 2004 alone.
Reaves first alerted Perry about the new arson analysis three days before the execution and requested more time to develop it.
“There is nothing more I would like than to be able to present you with evidence of actual innocence,” Reaves wrote Perry, according to a document released to the Chronicle. “I think we are close … The death penalty whether you agree with it or not, should be reserved for the most serious crimes. More importantly, it should be reserved for those crimes about which there is no doubt about the guilt of the person.”
By execution day, Perry was Willingham's last chance. The 5th Circuit Court of Appeals had rejected a reprieve, calling the arson expert's report “no more than an opinion.”
Willingham, then a 23-year-old unemployed mechanic and father of three, claimed to have been asleep on the morning his house in Corsicana, just south of Dallas, caught fire on Dec. 23, 1991. Willingham escaped with burns, but his three tiny daughters died. A profane man with a history of minor offenses in his native Oklahoma, the grieving father quickly became the target of a capital murder investigation based on the finding of arson, a history of beating his wife even while pregnant and other bizarre behavior.
At trial, prosecutors argued that Willingham had deliberately trapped his children inside a burning house to free up time to play darts and drink beer. Willingham repeatedly professed his innocence and refused the offer of a life sentence.
His 2004 execution gained renewed prominence this year after the newly formed Texas Forensic Science Commission, created by the Legislature to explore and fix forensic flaws, released a report that criticized the arson evidence. Two days before the panel was to review that report, Perry abruptly replaced three members, including the chairman, and the meeting was canceled. The governor also attacked the report, according to other media reports.
Yet the 2009 report was only the latest in a string of expert opinions that suggested arson investigators had relied on outdated and discredited techniques in the Willingham case.
Similar flaws found
The five-page opinion faxed to Perry's office on Willingham's execution day in 2004 was the first. It said investigators made “major errors” and relied on discredited techniques akin to an “old wives tale.”
It was authored by Dr. Gerald Hurst, an Austin-based arson expert who holds a doctorate in chemistry from Cambridge University.
By 2004, Hurst already had received national media coverage for helping to obtain a string of high-profile exonerations by debunking arson evidence in other criminal cases. Hurst said in an interview that his previous analysis of flaws in another Texas arson-murder case had helped prompt the Board of Pardons and Paroles in 1998 to free a woman convicted of setting a fire that killed her infant son. She had served six years of a 99-year sentence.
Opposing lawyers concur
The dispute over the arson evidence in Willingham's case likely would have died with him. But six months after the execution, Hurst was hired to review the evidence in another death row arson case. By October 2004, Ernest Willis was freed after Hurst found flaws eerily similar to those he had previously found in Willingham's case.
Records released by the governor's office do not show whether Navarro County case prosecutor John Jackson, now a senior judge, was consulted about Willingham's reprieve. Jackson remains skeptical of the arson experts' criticism and convinced of Willingham's guilt, but had offered a life sentence and knew about Hurst's report at the time.
He told the Chronicle he doesn't recall getting a call: “I probably wouldn't have had any problem either way.”
In the days before the execution, members of the Board of Pardons and Paroles voted by fax against clemency, Reaves said. But Texas law gives governors the right to delay an execution for 30 days without board approval.
Both Jackson, the original prosecutor, and Reaves, the last defense attorney, called for the governor to release all information on his review.
“From a fairness and honesty and integrity standpoint, there are very few circumstances where these things should not be made public,” Jackson said, “and I see no reason why not in this case.”