Trial by Fire

Did Texas execute an innocent man?

Cameron Todd Willingham in his cell on death row, in 1994. He insisted upon his innocence in the deaths of his children and refused an offer to plead guilty in return for a life sentence. Photograph by Ken Light.

The fire moved quickly through the house, a one-story wood-frame structure in a working-class neighborhood of Corsicana, in northeast Texas. Flames spread along the walls, bursting through doorways, blistering paint and tiles and furniture. Smoke pressed against the ceiling, then banked downward, seeping into each room and through crevices in the windows, staining the morning sky.

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.”

More men showed up, uncoiling hoses and aiming water at the blaze. One fireman, who had an air tank strapped to his back and a mask covering his face, slipped through a window but was hit by water from a hose and had to retreat. He then charged through the front door, into a swirl of smoke and fire. Heading down the main corridor, he reached the kitchen, where he saw a refrigerator blocking the back door.

Todd Willingham, looking on, appeared to grow more hysterical, and a police chaplain named George Monaghan led him to the back of a fire truck and tried to calm him down. Willingham explained that his wife, Stacy, had gone out earlier that morning, and that he had been jolted from sleep by Amber screaming, “Daddy! Daddy!”

“My little girl was trying to wake me up and tell me about the fire,” he said, adding, “I couldn’t get my babies out.”

While he was talking, a fireman emerged from the house, cradling Amber. As she was given C.P.R., Willingham, who was twenty-three years old and powerfully built, ran to see her, then suddenly headed toward the babies’ room. Monaghan and another man restrained him. “We had to wrestle with him and then handcuff him, for his and our protection,” Monaghan later told police. “I received a black eye.” One of the first firemen at the scene told investigators that, at an earlier point, he had also held Willingham back. “Based on what I saw on how the fire was burning, it would have been crazy for anyone to try and go into the house,” he said.

Willingham was taken to a hospital, where he was told that Amber—who had actually been found in the master bedroom—had died of smoke inhalation. Kameron and Karmon had been lying on the floor of the children’s bedroom, their bodies severely burned. According to the medical examiner, they, too, died from smoke inhalation.

News of the tragedy, which took place on December 23, 1991, spread through Corsicana. A small city fifty-five miles northeast of Waco, it had once been the center of Texas’s first oil boom, but many of the wells had since dried up, and more than a quarter of the city’s twenty thousand inhabitants had fallen into poverty. Several stores along the main street were shuttered, giving the place the feel of an abandoned outpost.

Willingham and his wife, who was twenty-two years old, had virtually no money. Stacy worked in her brother’s bar, called Some Other Place, and Willingham, an unemployed auto mechanic, had been caring for the kids. The community took up a collection to help the Willinghams pay for funeral arrangements.

Fire investigators, meanwhile, tried to determine the cause of the blaze. (Willingham gave authorities permission to search the house: “I know we might not ever know all the answers, but I’d just like to know why my babies were taken from me.”) Douglas Fogg, who was then the assistant fire chief in Corsicana, conducted the initial inspection. He was tall, with a crew cut, and his voice was raspy from years of inhaling smoke from fires and cigarettes. He had grown up in Corsicana and, after graduating from high school, in 1963, he had joined the Navy, serving as a medic in Vietnam, where he was wounded on four occasions. He was awarded a Purple Heart each time. After he returned from Vietnam, he became a firefighter, and by the time of the Willingham blaze he had been battling fire—or what he calls “the beast”—for more than twenty years, and had become a certified arson investigator. “You learn that fire talks to you,” he told me.

He was soon joined on the case by one of the state’s leading arson sleuths, a deputy fire marshal named Manuel Vasquez, who has since died. Short, with a paunch, Vasquez had investigated more than twelve hundred fires. Arson investigators have always been considered a special breed of detective. In the 1991 movie “Backdraft,” a heroic arson investigator says of fire, “It breathes, it eats, and it hates. The only way to beat it is to think like it. To know that this flame will spread this way across the door and up across the ceiling.” Vasquez, who had previously worked in Army intelligence, had several maxims of his own. One was “Fire does not destroy evidence—it creates it.” Another was “The fire tells the story. I am just the interpreter.” He cultivated a Sherlock Holmes-like aura of invincibility. Once, he was asked under oath whether he had ever been mistaken in a case. “If I have, sir, I don’t know,” he responded. “It’s never been pointed out.”

Vasquez and Fogg visited the Willinghams’ house four days after the blaze. Following protocol, they moved from the least burned areas toward the most damaged ones. “It is a systematic method,” Vasquez later testified, adding, “I’m just collecting information. . . . I have not made any determination. I don’t have any preconceived idea.”

The men slowly toured the perimeter of the house, taking notes and photographs, like archeologists mapping out a ruin. Upon opening the back door, Vasquez observed that there was just enough space to squeeze past the refrigerator blocking the exit. The air smelled of burned rubber and melted wires; a damp ash covered the ground, sticking to their boots. In the kitchen, Vasquez and Fogg discerned only smoke and heat damage—a sign that the fire had not originated there—and so they pushed deeper into the nine-hundred-and-seventy-five-square-foot building. A central corridor led past a utility room and the master bedroom, then past a small living room, on the left, and the children’s bedroom, on the right, ending at the front door, which opened onto the porch. Vasquez tried to take in everything, a process that he compared to entering one’s mother-in-law’s house for the first time: “I have the same curiosity.”

In the utility room, he noticed on the wall pictures of skulls and what he later described as an image of “the Grim Reaper.” Then he turned into the master bedroom, where Amber’s body had been found. Most of the damage there was also from smoke and heat, suggesting that the fire had started farther down the hallway, and he headed that way, stepping over debris and ducking under insulation and wiring that hung down from the exposed ceiling.

As he and Fogg removed some of the clutter, they noticed deep charring along the base of the walls. Because gases become buoyant when heated, flames ordinarily burn upward. But Vasquez and Fogg observed that the fire had burned extremely low down, and that there were peculiar char patterns on the floor, shaped like puddles.

Vasquez’s mood darkened. He followed the “burn trailer”—the path etched by the fire—which led from the hallway into the children’s bedroom. Sunlight filtering through the broken windows illuminated more of the irregularly shaped char patterns. A flammable or combustible liquid doused on a floor will cause a fire to concentrate in these kinds of pockets, which is why investigators refer to them as “pour patterns” or “puddle configurations.”

The fire had burned through layers of carpeting and tile and plywood flooring. Moreover, the metal springs under the children’s beds had turned white—a sign that intense heat had radiated beneath them. Seeing that the floor had some of the deepest burns, Vasquez deduced that it had been hotter than the ceiling, which, given that heat rises, was, in his words, “not normal.”

Fogg examined a piece of glass from one of the broken windows. It contained a spiderweb-like pattern—what fire investigators call “crazed glass.” Forensic textbooks had long described the effect as a key indicator that a fire had burned “fast and hot,” meaning that it had been fuelled by a liquid accelerant, causing the glass to fracture.

The men looked again at what appeared to be a distinct burn trailer through the house: it went from the children’s bedroom into the corridor, then turned sharply to the right and proceeded out the front door. To the investigators’ surprise, even the wood under the door’s aluminum threshold was charred. On the concrete floor of the porch, just outside the front door, Vasquez and Fogg noticed another unusual thing: brown stains, which, they reported, were consistent with the presence of an accelerant.

The men scanned the walls for soot marks that resembled a “V.” When an object catches on fire, it creates such a pattern, as heat and smoke radiate outward; the bottom of the “V” can therefore point to where a fire began. In the Willingham house, there was a distinct “V” in the main corridor. Examining it and other burn patterns, Vasquez identified three places where fire had originated: in the hallway, in the children’s bedroom, and at the front door. Vasquez later testified that multiple origins pointed to one conclusion: the fire was “intentionally set by human hands.”

By now, both investigators had a clear vision of what had happened. Someone had poured liquid accelerant throughout the children’s room, even under their beds, then poured some more along the adjoining hallway and out the front door, creating a “fire barrier” that prevented anyone from escaping; similarly, a prosecutor later suggested, the refrigerator in the kitchen had been moved to block the back-door exit. The house, in short, had been deliberately transformed into a death trap.

The investigators collected samples of burned materials from the house and sent them to a laboratory that could detect the presence of a liquid accelerant. The lab’s chemist reported that one of the samples contained evidence of “mineral spirits,” a substance that is often found in charcoal-lighter fluid. The sample had been taken by the threshold of the front door.

The fire was now considered a triple homicide, and Todd Willingham—the only person, besides the victims, known to have been in the house at the time of the blaze—became the prime suspect.

Police and fire investigators canvassed the neighborhood, interviewing witnesses. Several, like Father Monaghan, initially portrayed Willingham as devastated by the fire. Yet, over time, an increasing number of witnesses offered damning statements. Diane Barbee said that she had not seen Willingham try to enter the house until after the authorities arrived, as if he were putting on a show. And when the children’s room exploded with flames, she added, he seemed more preoccupied with his car, which he moved down the driveway. Another neighbor reported that when Willingham cried out for his babies he “did not appear to be excited or concerned.” Even Father Monaghan wrote in a statement that, upon further reflection, “things were not as they seemed. I had the feeling that [Willingham] was in complete control.”

The police began to piece together a disturbing profile of Willingham. Born in Ardmore, Oklahoma, in 1968, he had been abandoned by his mother when he was a baby. His father, Gene, who had divorced his mother, eventually raised him with his stepmother, Eugenia. Gene, a former U.S. marine, worked in a salvage yard, and the family lived in a cramped house; at night, they could hear freight trains rattling past on a nearby track. Willingham, who had what the family called the “classic Willingham look”—a handsome face, thick black hair, and dark eyes—struggled in school, and as a teen-ager began to sniff paint. When he was seventeen, Oklahoma’s Department of Human Services evaluated him, and reported, “He likes ‘girls,’ music, fast cars, sharp trucks, swimming, and hunting, in that order.” Willingham dropped out of high school, and over time was arrested for, among other things, driving under the influence, stealing a bicycle, and shoplifting.

In 1988, he met Stacy, a senior in high school, who also came from a troubled background: when she was four years old, her stepfather had strangled her mother to death during a fight. Stacy and Willingham had a turbulent relationship. Willingham, who was unfaithful, drank too much Jack Daniel’s, and sometimes hit Stacy—even when she was pregnant. A neighbor said that he once heard Willingham yell at her, “Get up, bitch, and I’ll hit you again.”

On December 31st, the authorities brought Willingham in for questioning. Fogg and Vasquez were present for the interrogation, along with Jimmie Hensley, a police officer who was working his first arson case. Willingham said that Stacy had left the house around 9 A.M. to pick up a Christmas present for the kids, at the Salvation Army. “After she got out of the driveway, I heard the twins cry, so I got up and gave them a bottle,” he said. The children’s room had a safety gate across the doorway, which Amber could climb over but not the twins, and he and Stacy often let the twins nap on the floor after they drank their bottles. Amber was still in bed, Willingham said, so he went back into his room to sleep. “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.

The investigators asked him if he had any idea how the fire had started. He said that he wasn’t sure, though it must have originated in the children’s room, since that was where he first saw flames; they were glowing like “bright lights.” He and Stacy used three space heaters to keep the house warm, and one of them was in the children’s room. “I taught Amber not to play with it,” he said, adding that she got “whuppings every once in a while for messing with it.” He said that he didn’t know if the heater, which had an internal flame, was turned on. (Vasquez later testified that when he had checked the heater, four days after the fire, it was in the “Off” position.) Willingham speculated that the fire might have been started by something electrical: he had heard all that popping and crackling.

When pressed whether someone might have a motive to hurt his family, he said that he couldn’t think of anyone that “cold-blooded.” He said of his children, “I just don’t understand why anybody would take them, you know? We had three of the most pretty babies anybody could have ever asked for.” He went on, “Me and Stacy’s been together for four years, but off and on we get into a fight and split up for a while and I think those babies is what brought us so close together . . . neither one of us . . . could live without them kids.” Thinking of Amber, he said, “To tell you the honest-to-God’s truth, I wish she hadn’t woke me up.”

During the interrogation, Vasquez let Fogg take the lead. Finally, Vasquez turned to Willingham and asked a seemingly random question: had he put on shoes before he fled the house?

“No, sir,” Willingham replied.

A map of the house was on a table between the men, and Vasquez pointed to it. “You walked out this way?” he said.

Willingham said yes.

Vasquez was now convinced that Willingham had killed his children. If the floor had been soaked with a liquid accelerant and the fire had burned low, as the evidence suggested, Willingham could not have run out of the house the way he had described without badly burning his feet. A medical report indicated that his feet had been unscathed.

Willingham insisted that, when he left the house, the fire was still around the top of the walls and not on the floor. “I didn’t have to jump through any flames,” he said. Vasquez believed that this was impossible, and that Willingham had lit the fire as he was retreating—first, torching the children’s room, then the hallway, and then, from the porch, the front door. Vasquez later said of Willingham, “He told me a story of pure fabrication. . . . He just talked and he talked and all he did was lie.”

Still, there was no clear motive. The children had life-insurance policies, but they amounted to only fifteen thousand dollars, and Stacy’s grandfather, who had paid for them, was listed as the primary beneficiary. Stacy told investigators that even though Willingham hit her he had never abused the children—“Our kids were spoiled rotten,” she said—and she did not believe that Willingham could have killed them.

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.”

On the night of January 8, 1992, two weeks after the fire, Willingham was riding in a car with Stacy when SWAT teams surrounded them, forcing them to the side of the road. “They pulled guns out like we had just robbed ten banks,” Stacy later recalled. “All we heard was ‘click, click.’ . . . Then they arrested him.”

Willingham was charged with murder. Because there were multiple victims, he was eligible for the death penalty, under Texas law. Unlike many other prosecutors in the state, Jackson, who had ambitions of becoming a judge, was personally opposed to capital punishment. “I don’t think it’s effective in deterring criminals,” he told me. “I just don’t think it works.” He also considered it wasteful: because of the expense of litigation and the appeals process, it costs, on average, $2.3 million to execute a prisoner in Texas—about three times the cost of incarcerating someone for forty years. Plus, Jackson said, “What’s the recourse if you make a mistake?” Yet his boss, Batchelor, believed that, as he once put it, “certain people who commit bad enough crimes give up the right to live,” and Jackson came to agree that the heinous nature of the crime in the Willingham case—“one of the worst in terms of body count” that he had ever tried—mandated death.

Willingham couldn’t afford to hire lawyers, and was assigned two by the state: David Martin, a former state trooper, and Robert Dunn, a local defense attorney who represented everyone from alleged murderers to spouses in divorce cases—a “Jack-of-all-trades,” as he calls himself. (“In a small town, you can’t say ‘I’m a so-and-so lawyer,’ because you’ll starve to death,” he told me.)

Not long after Willingham’s arrest, authorities received a message from a prison inmate named Johnny Webb, who was in the same jail as Willingham. Webb alleged that Willingham had confessed to him that he took “some kind of lighter fluid, squirting [it] around the walls and the floor, and set a fire.” The case against Willingham was considered airtight.

Even so, several of Stacy’s relatives—who, unlike her, believed that Willingham was guilty—told Jackson that they preferred to avoid the anguish of a trial. And so, shortly before jury selection, Jackson approached Willingham’s attorneys with an extraordinary offer: if their client pleaded guilty, the state would give him a life sentence. “I was really happy when I thought we might have a deal to avoid the death penalty,” Jackson recalls.

Willingham’s lawyers were equally pleased. They had little doubt that he had committed the murders and that, if the case went before a jury, he would be found guilty, and, subsequently, executed. “Everyone thinks defense lawyers must believe their clients are innocent, but that’s seldom true,” Martin told me. “Most of the time, they’re guilty as sin.” He added of Willingham, “All the evidence showed that he was one hundred per cent guilty. He poured accelerant all over the house and put lighter fluid under the kids’ beds.” It was, he said, “a classic arson case”: there were “puddle patterns all over the place—no disputing those.”

Martin and Dunn advised Willingham that he should accept the offer, but he refused. The lawyers asked his father and stepmother to speak to him. According to Eugenia, Martin showed them photographs of the burned children and said, “Look what your son did. You got to talk him into pleading, or he’s going to be executed.”

His parents went to see their son in jail. Though his father did not believe that he should plead guilty if he were innocent, his stepmother beseeched him to take the deal. “I just wanted to keep my boy alive,” she told me.

Willingham was implacable. “I ain’t gonna plead to something I didn’t do, especially killing my own kids,” he said. It was his final decision. Martin says, “I thought it was nuts at the time—and I think it’s nuts now.”

Willingham’s refusal to accept the deal confirmed the view of the prosecution, and even that of his defense lawyers, that he was an unrepentant killer.

In August, 1992, the trial commenced in the old stone courthouse in downtown Corsicana. Jackson and a team of prosecutors summoned a procession of witnesses, including Johnny Webb and the Barbees. The crux of the state’s case, though, remained the scientific evidence gathered by Vasquez and Fogg. On the stand, Vasquez detailed what he called more than “twenty indicators” of arson.

“Do you have an opinion as to who started the fire?” one of the prosecutors asked.

“Yes, sir,” Vasquez said. “Mr. Willingham.”

The prosecutor asked Vasquez what he thought Willingham’s intent was in lighting the fire. “To kill the little girls,” he said.

The defense had tried to find a fire expert to counter Vasquez and Fogg’s testimony, but the one they contacted concurred with the prosecution. Ultimately, the defense presented only one witness to the jury: the Willinghams’ babysitter, who said she could not believe that Willingham could have killed his children. (Dunn told me that Willingham had wanted to testify, but Martin and Dunn thought that he would make a bad witness.) The trial ended after two days.

During his closing arguments, Jackson said that the puddle configurations and pour patterns were Willingham’s inadvertent “confession,” burned into the floor. Showing a Bible that had been salvaged from the fire, Jackson paraphrased the words of Jesus from the Gospel of Matthew: “Whomsoever shall harm one of my children, it’s better for a millstone to be hung around his neck and for him to be cast in the sea.”

The jury was out for barely an hour before returning with a unanimous guilty verdict. As Vasquez put it, “The fire does not lie.”

II

When Elizabeth Gilbert approached the prison guard, on a spring day in 1999, and said Cameron Todd Willingham’s name, she was uncertain about what she was doing. A forty-seven-year-old French teacher and playwright from Houston, Gilbert was divorced with two children. She had never visited a prison before. Several weeks earlier, a friend, who worked at an organization that opposed the death penalty, had encouraged her to volunteer as a pen pal for an inmate on death row, and Gilbert had offered her name and address. Not long after, a short letter, written with unsteady penmanship, arrived from Willingham. “If you wish to write back, I would be honored to correspond with you,” he said. He also asked if she might visit him. Perhaps out of a writer’s curiosity, or perhaps because she didn’t feel quite herself (she had just been upset by news that her ex-husband was dying of cancer), she agreed. Now she was standing in front of the decrepit penitentiary in Huntsville, Texas—a place that inmates referred to as “the death pit.”

She filed past a razor-wire fence, a series of floodlights, and a checkpoint, where she was patted down, until she entered a small chamber. Only a few feet in front of her was a man convicted of multiple infanticide. He was wearing a white jumpsuit with “DR”—for death row—printed on the back, in large black letters. He had a tattoo of a serpent and a skull on his left biceps. He stood nearly six feet tall and was muscular, though his legs had atrophied after years of confinement.

A Plexiglas window separated Willingham from her; still, Gilbert, who had short brown hair and a bookish manner, stared at him uneasily. Willingham had once fought another prisoner who called him a “baby killer,” and since he had been incarcerated, seven years earlier, he had committed a series of disciplinary infractions that had periodically landed him in the segregation unit, which was known as “the dungeon.”

Willingham greeted her politely. He seemed grateful that she had come. After his conviction, Stacy had campaigned for his release. She wrote to Ann Richards, then the governor of Texas, saying, “I know him in ways that no one else does when it comes to our children. Therefore, I believe that there is no way he could have possibly committed this crime.” But within a year Stacy had filed for divorce, and Willingham had few visitors except for his parents, who drove from Oklahoma to see him once a month. “I really have no one outside my parents to remind me that I am a human being, not the animal the state professes I am,” he told Gilbert at one point.

He didn’t want to talk about death row. “Hell, I live here,” he later wrote her. “When I have a visit, I want to escape from here.” He asked her questions about her teaching and art. He expressed fear that, as a playwright, she might find him a “one-dimensional character,” and apologized for lacking social graces; he now had trouble separating the mores in prison from those of the outside world.

When Gilbert asked him if he wanted something to eat or drink from the vending machines, he declined. “I hope I did not offend you by not accepting any snacks,” he later wrote her. “I didn’t want you to feel I was there just for something like that.”

She had been warned that prisoners often tried to con visitors. He appeared to realize this, subsequently telling her, “I am just a simple man. Nothing else. And to most other people a convicted killer looking for someone to manipulate.”

Their visit lasted for two hours, and afterward they continued to correspond. She was struck by his letters, which seemed introspective, and were not at all what she had expected. “I am a very honest person with my feelings,” he wrote her. “I will not bullshit you on how I feel or what I think.” He said that he used to be stoic, like his father. But, he added, “losing my three daughters . . . my home, wife and my life, you tend to wake up a little. I have learned to open myself.”

She agreed to visit him again, and when she returned, several weeks later, he was visibly moved. “Here I am this person who nobody on the outside is ever going to know as a human, who has lost so much, but still trying to hold on,” he wrote her afterward. “But you came back! I don’t think you will ever know of what importance that visit was in my existence.”

They kept exchanging letters, and she began asking him about the fire. He insisted that he was innocent and that, if someone had poured accelerant through the house and lit it, then the killer remained free. Gilbert wasn’t naïve—she assumed that he was guilty. She did not mind giving him solace, but she was not there to absolve him.

Still, she had become curious about the case, and one day that fall she drove down to the courthouse in Corsicana to review the trial records. Many people in the community remembered the tragedy, and a clerk expressed bewilderment that anyone would be interested in a man who had burned his children alive.

Gilbert took the files and sat down at a small table. As she examined the eyewitness accounts, she noticed several contradictions. Diane Barbee had reported that, before the authorities arrived at the fire, Willingham never tried to get back into the house—yet she had been absent for some time while calling the Fire Department. Meanwhile, her daughter Buffie had reported witnessing Willingham on the porch breaking a window, in an apparent effort to reach his children. And the firemen and police on the scene had described Willingham frantically trying to get into the house.

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.”

After Gilbert’s visit to the courthouse, she kept wondering about Willingham’s motive, and she pressed him on the matter. In response, he wrote, of the death of his children, “I do not talk about it much anymore and it is still a very powerfully emotional pain inside my being.” He admitted that he had been a “sorry-ass husband” who had hit Stacy—something he deeply regretted. But he said that he had loved his children and would never have hurt them. Fatherhood, he said, had changed him; he stopped being a hoodlum and “settled down” and “became a man.” Nearly three months before the fire, he and Stacy, who had never married, wed at a small ceremony in his home town of Ardmore. He said that the prosecution had seized upon incidents from his past and from the day of the fire to create a portrait of a “demon,” as Jackson, the prosecutor, referred to him. For instance, Willingham said, he had moved the car during the fire simply because he didn’t want it to explode by the house, further threatening the children.

Gilbert was unsure what to make of his story, and she began to approach people who were involved in the case, asking them questions. “My friends thought I was crazy,” Gilbert recalls. “I’d never done anything like this in my life.”

One morning, when Willingham’s parents came to visit him, Gilbert arranged to see them first, at a coffee shop near the prison. Gene, who was in his seventies, had the Willingham look, though his black hair had gray streaks and his dark eyes were magnified by glasses. Eugenia, who was in her fifties, with silvery hair, was as sweet and talkative as her husband was stern and reserved. The drive from Oklahoma to Texas took six hours, and they had woken at three in the morning; because they could not afford a motel, they would have to return home later that day. “I feel like a real burden to them,” Willingham had written Gilbert.

As Gene and Eugenia sipped coffee, they told Gilbert how grateful they were that someone had finally taken an interest in Todd’s case. Gene said that his son, though he had flaws, was no killer.

The evening before the fire, Eugenia said, she had spoken on the phone with Todd. She and Gene were planning on visiting two days later, on Christmas Eve, and Todd told her that he and Stacy and the kids had just picked up family photographs. “He said, ‘We got your pictures for Christmas,’ ” she recalled. “He put Amber on the phone, and she was tattling on one of the twins. Todd didn’t seem upset. If something was bothering him, I would have known.”

Gene and Eugenia got up to go: they didn’t want to miss any of the four hours that were allotted for the visit with their son. Before they left, Gene said, “You’ll let us know if you find anything, won’t you?”

Over the next few weeks, Gilbert continued to track down sources. Many of them, including the Barbees, remained convinced that Willingham was guilty, but several of his friends and relatives had doubts. So did some people in law enforcement. Willingham’s former probation officer in Oklahoma, Polly Goodin, recently told me that Willingham had never demonstrated bizarre or sociopathic behavior. “He was probably one of my favorite kids,” she said. Even a former judge named Bebe Bridges—who had often stood, as she put it, on the “opposite side” of Willingham in the legal system, and who had sent him to jail for stealing—told me that she could not imagine him killing his children. “He was polite, and he seemed to care,” she said. “His convictions had been for dumb-kid stuff. Even the things stolen weren’t significant.” Several months before the fire, Willingham tracked Goodin down at her office, and proudly showed her photographs of Stacy and the kids. “He wanted Bebe and me to know he’d been doing good,” Goodin recalled.

Eventually, Gilbert returned to Corsicana to interview Stacy, who had agreed to meet at the bed-and-breakfast where Gilbert was staying. Stacy was slightly plump, with pale, round cheeks and feathered dark-blond hair; her bangs were held in place by gel, and her face was heavily made up. 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.”

Willingham had often not treated her well, she recalled, and after his incarceration she had left him for a man who did. But she didn’t think that her former husband should be on death row. “I don’t think he did it,” she said, crying.

Though only the babysitter had appeared as a witness for the defense during the main trial, several family members, including Stacy, testified during the penalty phase, asking the jury to spare Willingham’s life. When Stacy was on the stand, Jackson grilled her about the “significance” of Willingham’s “very large tattoo of a skull, encircled by some kind of a serpent.”

“It’s just a tattoo,” Stacy responded.

“He just likes skulls and snakes. Is that what you’re saying?”

“No. He just had—he got a tattoo on him.”

The prosecution cited such evidence in asserting that Willingham fit the profile of a sociopath, and brought forth two medical experts to confirm the theory. Neither had met Willingham. One of them was Tim Gregory, a psychologist with a master’s degree in marriage and family issues, who had previously gone goose hunting with Jackson, and had not published any research in the field of sociopathic behavior. His practice was devoted to family counselling.

At one point, Jackson showed Gregory Exhibit No. 60—a photograph of an Iron Maiden poster that had hung in Willingham’s house—and asked the psychologist to interpret it. “This one is a picture of a skull, with a fist being punched through the skull,” Gregory said; the image displayed “violence” and “death.” Gregory looked at photographs of other music posters owned by Willingham. “There’s a hooded skull, with wings and a hatchet,” Gregory continued. “And all of these are in fire, depicting—it reminds me of something like Hell. And there’s a picture—a Led Zeppelin picture of a falling angel. . . . I see there’s an association many times with cultive-type of activities. A focus on death, dying. Many times individuals that have a lot of this type of art have interest in satanic-type activities.”

The other medical expert was James P. Grigson, a forensic psychiatrist. He testified so often for the prosecution in capital-punishment cases that he had become known as Dr. Death. (A Texas appellate judge once wrote that when Grigson appeared on the stand the defendant might as well “commence writing out his last will and testament.”) Grigson suggested that Willingham was an “extremely severe sociopath,” and that “no pill” or treatment could help him. Grigson had previously used nearly the same words in helping to secure a death sentence against Randall Dale Adams, who had been convicted of murdering a police officer, in 1977. After Adams, who had no prior criminal record, spent a dozen years on death row—and once came within seventy-two hours of being executed—new evidence emerged that absolved him, and he was released. In 1995, three years after Willingham’s trial, Grigson was expelled from the American Psychiatric Association for violating ethics. The association stated that Grigson had repeatedly arrived at a “psychiatric diagnosis without first having examined the individuals in question, and for indicating, while testifying in court as an expert witness, that he could predict with 100-per-cent certainty that the individuals would engage in future violent acts.”

After speaking to Stacy, Gilbert had one more person she wanted to interview: the jailhouse informant Johnny Webb, who was incarcerated in Iowa Park, Texas. She wrote to Webb, who said that she could see him, and they met in the prison visiting room. A man in his late twenties, he had pallid skin and a closely shaved head; his eyes were jumpy, and his entire body seemed to tremble. A reporter who once met him described him to me as “nervous as a cat around rocking chairs.” Webb had begun taking drugs when he was nine years old, and had been convicted of, among other things, car theft, selling marijuana, forgery, and robbery.

As Gilbert chatted with him, she thought that he seemed paranoid. During Willingham’s trial, Webb disclosed that he had been given a diagnosis of “post-traumatic stress disorder” after he was sexually assaulted in prison, in 1988, and that he often suffered from “mental impairment.” Under cross-examination, Webb testified that he had no recollection of a robbery that he had pleaded guilty to only months earlier.

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.

Jailhouse informants, many of whom are seeking reduced time or special privileges, are notoriously unreliable. According to a 2004 study by the Center on Wrongful Convictions, at Northwestern University Law School, lying police and jailhouse informants are the leading cause of wrongful convictions in capital cases in the United States. At the time that Webb came forward against Willingham, he was facing charges of robbery and forgery. During Willingham’s trial, another inmate planned to testify that he had overheard Webb saying to another prisoner that he was hoping to “get time cut,” but the testimony was ruled inadmissible, because it was hearsay. Webb, who pleaded guilty to the robbery and forgery charges, received a sentence of fifteen years. Jackson, the prosecutor, told me that he generally considered Webb “an unreliable kind of guy,” but added, “I saw no real motive for him to make a statement like this if it wasn’t true. We didn’t cut him any slack.” In 1997, five years after Willingham’s trial, Jackson urged the Texas Board of Pardons and Paroles to grant Webb parole. “I asked them to cut him loose early,” Jackson told me. The reason, Jackson said, was that Webb had been targeted by the Aryan Brotherhood. The board granted Webb parole, but within months of his release he was caught with cocaine and returned to prison.

In March, 2000, several months after Gilbert’s visit, Webb unexpectedly sent Jackson a Motion to Recant Testimony, declaring, “Mr. Willingham is innocent of all charges.” But Willingham’s lawyer was not informed of this development, and soon afterward Webb, without explanation, recanted his recantation. When I recently asked Webb, who was released from prison two years ago, about the turnabout and why Willingham would have confessed to a virtual stranger, he said that he knew only what “the dude told me.” After I pressed him, he said, “It’s very possible I misunderstood what he said.” Since the trial, Webb has been given an additional diagnosis, bipolar disorder. “Being locked up in that little cell makes you kind of crazy,” he said. “My memory is in bits and pieces. I was on a lot of medication at the time. Everyone knew that.” He paused, then said, “The statute of limitations has run out on perjury, hasn’t it?”

Aside from the scientific evidence of arson, the case against Willingham did not stand up to scrutiny. Jackson, the prosecutor, said of Webb’s testimony, “You can take it or leave it.” Even the refrigerator’s placement by the back door of the house turned out to be innocuous; there were two refrigerators in the cramped kitchen, and one of them was by the back door. Jimmie Hensley, the police detective, and Douglas Fogg, the assistant fire chief, both of whom investigated the fire, told me recently that they had never believed that the fridge was part of the arson plot. “It didn’t have nothing to do with the fire,” Fogg said.

After months of investigating the case, Gilbert found that her faith in the prosecution was shaken. As she told me, “What if Todd really was innocent?”

III

In the summer of 1660, an Englishman named William Harrison vanished on a walk, near the village of Charingworth, in Gloucestershire. His bloodstained hat was soon discovered on the side of a local road. Police interrogated Harrison’s servant, John Perry, and eventually Perry gave a statement that his mother and his brother had killed Harrison for money. Perry, his mother, and his brother were hanged.

Two years later, Harrison reappeared. He insisted, fancifully, that he had been abducted by a band of criminals and sold into slavery. Whatever happened, one thing was indisputable: he had not been murdered by the Perrys.

The fear that an innocent person might be executed has long haunted jurors and lawyers and judges. During America’s Colonial period, dozens of crimes were punishable by death, including horse thievery, blasphemy, “man-stealing,” and highway robbery. After independence, the number of crimes eligible for the death penalty was gradually reduced, but doubts persisted over whether legal procedures were sufficient to prevent an innocent person from being executed. In 1868, John Stuart Mill made one of the most eloquent defenses of capital punishment, arguing that executing a murderer did not display a wanton disregard for life but, rather, proof of its value. “We show, on the contrary, most emphatically our regard for it by the adoption of a rule that he who violates that right in another forfeits it for himself,” he said. For Mill, there was one counterargument that carried weight—“that if by an error of justice an innocent person is put to death, the mistake can never be corrected.”

The modern legal system, with its lengthy appeals process and clemency boards, was widely assumed to protect the kind of “error of justice” that Mill feared. In 2000, while George W. Bush was governor of Texas, he said, “I know there are some in the country who don’t care for the death penalty, but . . . we’ve adequately answered innocence or guilt.” His top policy adviser on issues of criminal justice emphasized that there is “super due process to make sure that no innocent defendants are executed.”

In recent years, though, questions have mounted over whether the system is fail-safe. Since 1976, more than a hundred and thirty people on death row have been exonerated. DNA testing, which was developed in the eighties, saved seventeen of them, but the technique can be used only in rare instances. Barry Scheck, a co-founder of the Innocence Project, which has used DNA testing to exonerate prisoners, estimates that about eighty per cent of felonies do not involve biological evidence.

In 2000, after thirteen people on death row in Illinois were exonerated, George Ryan, who was then governor of the state, suspended the death penalty. Though he had been a longtime advocate of capital punishment, he declared that he could no longer support a system that has “come so close to the ultimate nightmare—the state’s taking of innocent life.” Former Supreme Court Justice Sandra Day O’Connor has said that the “execution of a legally and factually innocent person would be a constitutionally intolerable event.”

Such a case has become a kind of grisly Holy Grail among opponents of capital punishment. In his 2002 book “The Death Penalty,” Stuart Banner observes, “The prospect of killing an innocent person seemed to be the one thing that could cause people to rethink their support for capital punishment. Some who were not troubled by statistical arguments against the death penalty—claims about deterrence or racial disparities—were deeply troubled that such an extreme injustice might occur in an individual case.” Opponents of the death penalty have pointed to several questionable cases. In 1993, Ruben Cantu was executed in Texas for fatally shooting a man during a robbery. Years later, a second victim, who survived the shooting, told the Houston Chronicle that he had been pressured by police to identify Cantu as the gunman, even though he believed Cantu to be innocent. Sam Millsap, the district attorney in the case, who had once supported capital punishment (“I’m no wild-eyed, pointy-headed liberal”), said that he was disturbed by the thought that he had made a mistake.

In 1995, Larry Griffin was put to death in Missouri, for a drive-by shooting of a drug dealer. The case rested largely on the eyewitness testimony of a career criminal named Robert Fitzgerald, who had been an informant for prosecutors before and was in the witness-protection program. Fitzgerald maintained that he happened to be at the scene because his car had broken down. After Griffin’s execution, a probe sponsored by the N.A.A.C.P.’s Legal Defense and Educational Fund revealed that a man who had been wounded during the incident insisted that Griffin was not the shooter. Moreover, the first police officer at the scene disputed that Fitzgerald had witnessed the crime.

These cases, however, stopped short of offering irrefutable proof that a “legally and factually innocent person” was executed. In 2005, a St. Louis prosecutor, Jennifer Joyce, launched an investigation of the Griffin case, upon being presented with what she called “compelling” evidence of Griffin’s potential innocence. After two years of reviewing the evidence, and interviewing a new eyewitness, Joyce said that she and her team were convinced that the “right person was convicted.”

Supreme Court Justice Antonin Scalia, in 2006, voted with a majority to uphold the death penalty in a Kansas case. In his opinion, Scalia declared that, in the modern judicial system, there has not been “a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops.”

“My problems are simple,” Willingham wrote Gilbert in September, 1999. “Try to keep them from killing me at all costs. End of story.”

During his first years on death row, Willingham had pleaded with his lawyer, David Martin, to rescue him. “You can’t imagine what it’s like to be here, with people I have no business even being around,” he wrote.

For a while, Willingham shared a cell with Ricky Lee Green, a serial killer, who castrated and fatally stabbed his victims, including a sixteen-year-old boy. (Green was executed in 1997.) Another of Willingham’s cellmates, who had an I.Q. below seventy and the emotional development of an eight-year-old, was raped by an inmate. “You remember me telling you I had a new celly?” Willingham wrote in a letter to his parents. “The little retarded boy. . . . There was this guy here on the wing who is a shit sorry coward (who is the same one I got into it with a little over a month ago). Well, he raped [my cellmate] in the 3 row shower week before last.” Willingham said that he couldn’t believe that someone would “rape a boy who cannot even defend himself. Pretty damn low.”

Because Willingham was known as a “baby killer,” he was a target of attacks. “Prison is a rough place, and with a case like mine they never give you the benefit of a doubt,” he wrote his parents. After he tried to fight one prisoner who threatened him, Willingham told a friend that if he hadn’t stood up for himself several inmates would have “beaten me up or raped or”—his thought trailed off.

Over the years, Willingham’s letters home became increasingly despairing. “This is a hard place, and it makes a person hard inside,” he wrote. “I told myself that was one thing I did not want and that was for this place to make me bitter, but it is hard.” He went on, “They have [executed] at least one person every month I have been here. It is senseless and brutal. . . . You see, we are not living in here, we are only existing.” In 1996, he wrote, “I just been trying to figure out why after having a wife and 3 beautiful children that I loved my life has to end like this. And sometimes it just seems like it is not worth it all. . . . In the 3 1/2 years I been here I have never felt that my life was as worthless and desolate as it is now.” Since the fire, he wrote, he had the sense that his life was slowly being erased. He obsessively looked at photographs of his children and Stacy, which he stored in his cell. “So long ago, so far away,” he wrote in a poem. “Was everything truly there?”

Inmates on death row are housed in a prison within a prison, where there are no attempts at rehabilitation, and no educational or training programs. In 1999, after seven prisoners tried to escape from Huntsville, Willingham and four hundred and fifty-nine other inmates on death row were moved to a more secure facility, in Livingston, Texas. Willingham was held in isolation in a sixty-square-foot cell, twenty-three hours a day. He tried to distract himself by drawing—“amateur stuff,” as he put it—and writing poems. In a poem about his children, he wrote, “There is nothing more beautiful than you on this earth.” When Gilbert once suggested some possible revisions to his poems, he explained that he wrote them simply as expressions, however crude, of his feelings. “So to me to cut them up and try to improve on them just for creative-writing purposes would be to destroy what I was doing to start with,” he said.

Despite his efforts to occupy his thoughts, he wrote in his diary that his mind “deteriorates each passing day.” He stopped working out and gained weight. He questioned his faith: “No God who cared about his creation would abandon the innocent.” He seemed not to care if another inmate attacked him. “A person who is already dead inside does not fear” death, he wrote.

One by one, the people he knew in prison were escorted into the execution chamber. There was Clifton Russell, Jr., who, at the age of eighteen, stabbed and beat a man to death, and who said, in his last statement, “I thank my Father, God in Heaven, for the grace he has granted me—I am ready.” There was Jeffery Dean Motley, who kidnapped and fatally shot a woman, and who declared, in his final words, “I love you, Mom. Goodbye.” And there was John Fearance, who murdered his neighbor, and who turned to God in his last moments and said, “I hope He will forgive me for what I done.”

Willingham had grown close to some of his prison mates, even though he knew that they were guilty of brutal crimes. In March, 2000, Willingham’s friend Ponchai Wilkerson—a twenty-eight-year-old who had shot and killed a clerk during a jewelry heist—was executed. Afterward, Willingham wrote in his diary that he felt “an emptiness that has not been touched since my children were taken from me.” A year later, another friend who was about to be executed—“one of the few real people I have met here not caught up in the bravado of prison”—asked Willingham to make him a final drawing. “Man, I never thought drawing a simple Rose could be so emotionally hard,” Willingham wrote. “The hard part is knowing that this will be the last thing I can do for him.”

Another inmate, Ernest Ray Willis, had a case that was freakishly similar to Willingham’s. In 1987, Willis had been convicted of setting a fire, in West Texas, that killed two women. Willis told investigators that he had been sleeping on a friend’s living-room couch and woke up to a house full of smoke. He said that he tried to rouse one of the women, who was sleeping in another room, but the flames and smoke drove him back, and he ran out the front door before the house exploded with flames. Witnesses maintained that Willis had acted suspiciously; he moved his car out of the yard, and didn’t show “any emotion,” as one volunteer firefighter put it. Authorities also wondered how Willis could have escaped the house without burning his bare feet. Fire investigators found pour patterns, puddle configurations, and other signs of arson. The authorities could discern no motive for the crime, but concluded that Willis, who had no previous record of violence, was a sociopath—a “demon,” as the prosecutor put it. Willis was charged with capital murder and sentenced to death.

Willis had eventually obtained what Willingham called, enviously, a “bad-ass lawyer.” James Blank, a noted patent attorney in New York, was assigned Willis’s case as part of his firm’s pro-bono work. Convinced that Willis was innocent, Blank devoted more than a dozen years to the case, and his firm spent millions, on fire consultants, private investigators, forensic experts, and the like. Willingham, meanwhile, relied on David Martin, his court-appointed lawyer, and one of Martin’s colleagues to handle his appeals. Willingham often told his parents, “You don’t know what it’s like to have lawyers who won’t even believe you’re innocent.” Like many inmates on death row, Willingham eventually filed a claim of inadequate legal representation. (When I recently asked Martin about his representation of Willingham, he said, “There were no grounds for reversal, and the verdict was absolutely the right one.” He said of the case, “Shit, it’s incredible that anyone’s even thinking about it.”)

Willingham tried to study the law himself, reading books such as “Tact in Court, or How Lawyers Win: Containing Sketches of Cases Won by Skill, Wit, Art, Tact, Courage and Eloquence.” Still, he confessed to a friend, “The law is so complicated it is hard for me to understand.” In 1996, he obtained a new court-appointed lawyer, Walter Reaves, who told me that he was appalled by the quality of Willingham’s defense at trial and on appeal. Reaves prepared for him a state writ of habeas corpus, known as a Great Writ. In the byzantine appeals process of death-penalty cases, which frequently takes more than ten years, the writ is the most critical stage: a prisoner can introduce new evidence detailing such things as perjured testimony, unreliable medical experts, and bogus scientific findings. Yet most indigent inmates, like Willingham, who constitute the bulk of those on death row, lack the resources to track down new witnesses or dig up fresh evidence. They must depend on court-appointed lawyers, many of whom are “unqualified, irresponsible, or overburdened,” as a study by the Texas Defender Service, a nonprofit organization, put it. In 2000, a Dallas Morning News investigation revealed that roughly a quarter of the inmates condemned to death in Texas were represented by court-appointed attorneys who had, at some point in their careers, been “reprimanded, placed on probation, suspended or banned from practicing law by the State Bar.” Although Reaves was more competent, he had few resources to reinvestigate the case, and his writ introduced no new exculpatory evidence: nothing further about Webb, or the reliability of the eyewitness testimony, or the credibility of the medical experts. It focussed primarily on procedural questions, such as whether the trial court erred in its instructions to the jury.

The Texas Court of Criminal Appeals was known for upholding convictions even when overwhelming exculpatory evidence came to light. In 1997, DNA testing proved that sperm collected from a rape victim did not match Roy Criner, who had been sentenced to ninety-nine years for the crime. Two lower courts recommended that the verdict be overturned, but the Court of Criminal Appeals upheld it, arguing that Criner might have worn a condom or might not have ejaculated. Sharon Keller, who is now the presiding judge on the court, stated in a majority opinion, “The new evidence does not establish innocence.” In 2000, George W. Bush pardoned Criner. (Keller was recently charged with judicial misconduct, for refusing to keep open past five o’clock a clerk’s office in order to allow a last-minute petition from a man who was executed later that night.)

On October 31, 1997, the Court of Criminal Appeals denied Willingham’s writ. After Willingham filed another writ of habeas corpus, this time in federal court, he was granted a temporary stay. In a poem, Willingham wrote, “One more chance, one more strike / Another bullet dodged, another date escaped.”

Willingham was entering his final stage of appeals. As his anxieties mounted, he increasingly relied upon Gilbert to investigate his case and for emotional support. “She may never know what a change she brought into my life,” he wrote in his diary. “For the first time in many years she gave me a purpose, something to look forward to.”

As their friendship deepened, he asked her to promise him that she would never disappear without explanation. “I already have that in my life,” he told her.

Together, they pored over clues and testimony. Gilbert says that she would send Reaves leads to follow up, but although he was sympathetic, nothing seemed to come of them. In 2002, a federal district court of appeals denied Willingham’s writ without even a hearing. “Now I start the last leg of my journey,” Willingham wrote to Gilbert. “Got to get things in order.”

He appealed to the U.S. Supreme Court, but in December, 2003, he was notified that it had declined to hear his case. He soon received a court order announcing that “the Director of the Department of Criminal Justice at Huntsville, Texas, acting by and through the executioner designated by said Director . . . is hereby DIRECTED and COMMANDED, at some hour after 6:00 p.m. on the 17th day of February, 2004, at the Department of Criminal Justice in Huntsville, Texas, to carry out this sentence of death by intravenous injection of a substance or substances in a lethal quantity sufficient to cause the death of said Cameron Todd Willingham.”

Willingham wrote a letter to his parents. “Are you sitting down?” he asked, before breaking the news. “I love you both so much,” he said.

His only remaining recourse was to appeal to the governor of Texas, Rick Perry, a Republican, for clemency. The process, considered the last gatekeeper to the executioner, has been called by the U.S. Supreme Court “the ‘fail safe’ in our criminal justice system.”

IV

One day in January, 2004, Dr. Gerald Hurst, an acclaimed scientist and fire investigator, received a file describing all the evidence of arson gathered in Willingham’s case. Gilbert had come across Hurst’s name and, along with one of Willingham’s relatives, had contacted him, seeking his help. After their pleas, Hurst had agreed to look at the case pro bono, and Reaves, Willingham’s lawyer, had sent him the relevant documents, in the hope that there were grounds for clemency.

Hurst opened the file in the basement of his house in Austin, which served as a laboratory and an office, and was cluttered with microscopes and diagrams of half-finished experiments. Hurst was nearly six and half feet tall, though his stooped shoulders made him seem considerably shorter, and he had a gaunt face that was partly shrouded by long gray hair. He was wearing his customary outfit: black shoes, black socks, a black T-shirt, and loose-fitting black pants supported by black suspenders. In his mouth was a wad of chewing tobacco.

A child prodigy who was raised by a sharecropper during the Great Depression, Hurst used to prowl junk yards, collecting magnets and copper wires in order to build radios and other contraptions. In the early sixties, he received a Ph.D. in chemistry from Cambridge University, where he started to experiment with fluorine and other explosive chemicals, and once detonated his lab. Later, he worked as the chief scientist on secret weapons programs for several American companies, designing rockets and deadly fire bombs—or what he calls “god-awful things.” He helped patent what has been described, with only slight exaggeration, as “the world’s most powerful nonnuclear explosive”: an Astrolite bomb. He experimented with toxins so lethal that a fraction of a drop would rot human flesh, and in his laboratory he often had to wear a pressurized moon suit; despite such precautions, exposure to chemicals likely caused his liver to fail, and in 1994 he required a transplant. Working on what he calls “the dark side of arson,” he retrofitted napalm bombs with Astrolite, and developed ways for covert operatives in Vietnam to create bombs from local materials, such as chicken manure and sugar. He also perfected a method for making an exploding T-shirt by nitrating its fibres.

His conscience eventually began pricking him. “One day, you wonder, What the hell am I doing?” he recalls. He left the defense industry, and went on to invent the Mylar balloon, an improved version of Liquid Paper, and Kinepak, a kind of explosive that reduces the risk of accidental detonation. Because of his extraordinary knowledge of fire and explosives, companies in civil litigation frequently sought his help in determining the cause of a blaze. By the nineties, Hurst had begun devoting significant time to criminal-arson cases, and, as he was exposed to the methods of local and state fire investigators, he was shocked by what he saw.

Many arson investigators, it turned out, had only a high-school education. In most states, in order to be certified, investigators had to take a forty-hour course on fire investigation, and pass a written exam. Often, the bulk of an investigator’s training came on the job, learning from “old-timers” in the field, who passed down a body of wisdom about the telltale signs of arson, even though a study in 1977 warned that there was nothing in “the scientific literature to substantiate their validity.”

In 1992, the National Fire Protection Association, which promotes fire prevention and safety, published its first scientifically based guidelines to arson investigation. Still, many arson investigators believed that what they did was more an art than a science—a blend of experience and intuition. In 1997, the International Association of Arson Investigators filed a legal brief arguing that arson sleuths should not be bound by a 1993 Supreme Court decision requiring experts who testified at trials to adhere to the scientific method. What arson sleuths did, the brief claimed, was “less scientific.” By 2000, after the courts had rejected such claims, arson investigators increasingly recognized the scientific method, but there remained great variance in the field, with many practitioners still relying on the unverified techniques that had been used for generations. “People investigated fire largely with a flat-earth approach,” Hurst told me. “It looks like arson—therefore, it’s arson.” He went on, “My view is you have to have a scientific basis. Otherwise, it’s no different than witch-hunting.”

In 1998, Hurst investigated the case of a woman from North Carolina named Terri Hinson, who was charged with setting a fire that killed her seventeen-month-old son, and faced the death penalty. Hurst ran a series of experiments re-creating the conditions of the fire, which suggested that it had not been arson, as the investigators had claimed; rather, it had started accidentally, from a faulty electrical wire in the attic. Because of this research, Hinson was freed. John Lentini, a fire expert and the author of a leading scientific textbook on arson, describes Hurst as “brilliant.” A Texas prosecutor once told the Chicago Tribune, of Hurst, “If he says it was an arson fire, then it was. If he says it wasn’t, then it wasn’t.”

Hurst’s patents yielded considerable royalties, and he could afford to work pro bono on an arson case for months, even years. But he received the files on Willingham’s case only a few weeks before Willingham was scheduled to be executed. As Hurst looked through the case records, a statement by Manuel Vasquez, the state deputy fire marshal, jumped out at him. Vasquez had testified that, of the roughly twelve hundred to fifteen hundred fires he had investigated, “most all of them” were arson. This was an oddly high estimate; the Texas State Fire Marshals Office typically found arson in only fifty per cent of its cases.

Hurst was also struck by Vasquez’s claim that the Willingham blaze had “burned fast and hot” because of a liquid accelerant. The notion that a flammable or combustible liquid caused flames to reach higher temperatures had been repeated in court by arson sleuths for decades. Yet the theory was nonsense: experiments have proved that wood and gasoline-fuelled fires burn at essentially the same temperature.

Vasquez and Fogg had cited as proof of arson the fact that the front door’s aluminum threshold had melted. “The only thing that can cause that to react is an accelerant,” Vasquez said. Hurst was incredulous. A natural-wood fire can reach temperatures as high as two thousand degrees Fahrenheit—far hotter than the melting point for aluminum alloys, which ranges from a thousand to twelve hundred degrees. And, like many other investigators, Vasquez and Fogg mistakenly assumed that wood charring beneath the aluminum threshold was evidence that, as Vasquez put it, “a liquid accelerant flowed underneath and burned.” Hurst had conducted myriad experiments showing that such charring was caused simply by the aluminum conducting so much heat. In fact, when liquid accelerant is poured under a threshold a fire will extinguish, because of a lack of oxygen. (Other scientists had reached the same conclusion.) “Liquid accelerants can no more burn under an aluminum threshold than can grease burn in a skillet even with a loose-fitting lid,” Hurst declared in his report on the Willingham case.

Hurst then examined Fogg and Vasquez’s claim that the “brown stains” on Willingham’s front porch were evidence of “liquid accelerant,” which had not had time to soak into the concrete. Hurst had previously performed a test in his garage, in which he poured charcoal-lighter fluid on the concrete floor, and lit it. When the fire went out, there were no brown stains, only smudges of soot. Hurst had run the same experiment many times, with different kinds of liquid accelerants, and the result was always the same. Brown stains were common in fires; they were usually composed of rust or gunk from charred debris that had mixed with water from fire hoses.

Another crucial piece of evidence implicating Willingham was the “crazed glass” that Vasquez had attributed to the rapid heating from a fire fuelled with liquid accelerant. Yet, in November of 1991, a team of fire investigators had inspected fifty houses in the hills of Oakland, California, which had been ravaged by brush fires. In a dozen houses, the investigators discovered crazed glass, even though a liquid accelerant had not been used. Most of these houses were on the outskirts of the blaze, where firefighters had shot streams of water; as the investigators later wrote in a published study, they theorized that the fracturing had been induced by rapid cooling, rather than by sudden heating—thermal shock had caused the glass to contract so quickly that it settled disjointedly. The investigators then tested this hypothesis in a laboratory. When they heated glass, nothing happened. But each time they applied water to the heated glass the intricate patterns appeared. Hurst had seen the same phenomenon when he had blowtorched and cooled glass during his research at Cambridge. In his report, Hurst wrote that Vasquez and Fogg’s notion of crazed glass was no more than an “old wives’ tale.”

Hurst then confronted some of the most devastating arson evidence against Willingham: the burn trailer, the pour patterns and puddle configurations, the V-shape and other burn marks indicating that the fire had multiple points of origin, the burning underneath the children’s beds. There was also the positive test for mineral spirits by the front door, and Willingham’s seemingly implausible story that he had run out of the house without burning his bare feet.

As Hurst read through more of the files, he noticed that Willingham and his neighbors had described the windows in the front of the house suddenly exploding and flames roaring forth. It was then that Hurst thought of the legendary Lime Street Fire, one of the most pivotal in the history of arson investigation.

On the evening of October 15, 1990, a thirty-five-year-old man named Gerald Wayne Lewis was found standing in front of his house on Lime Street, in Jacksonville, Florida, holding his three-year-old son. His two-story wood-frame home was engulfed in flames. By the time the fire had been extinguished, six people were dead, including Lewis’s wife. Lewis said that he had rescued his son but was unable to get to the others, who were upstairs.

When fire investigators examined the scene, they found the classic signs of arson: low burns along the walls and floors, pour patterns and puddle configurations, and a burn trailer running from the living room into the hallway. Lewis claimed that the fire had started accidentally, on a couch in the living room—his son had been playing with matches. But a V-shaped pattern by one of the doors suggested that the fire had originated elsewhere. Some witnesses told authorities that Lewis seemed too calm during the fire and had never tried to get help. According to the Los Angeles Times, Lewis had previously been arrested for abusing his wife, who had taken out a restraining order against him. After a chemist said that he had detected the presence of gasoline on Lewis’s clothing and shoes, a report by the sheriff’s office concluded, “The fire was started as a result of a petroleum product being poured on the front porch, foyer, living room, stairwell and second floor bedroom.” Lewis was arrested and charged with six counts of murder. He faced the death penalty.

Subsequent tests, however, revealed that the laboratory identification of gasoline was wrong. Moreover, a local news television camera had captured Lewis in a clearly agitated state at the scene of the fire, and investigators discovered that at one point he had jumped in front of a moving car, asking the driver to call the Fire Department.

Seeking to bolster their theory of the crime, prosecutors turned to John Lentini, the fire expert, and John DeHaan, another leading investigator and textbook author. Despite some of the weaknesses of the case, Lentini told me that, given the classic burn patterns and puddle configurations in the house, he was sure that Lewis had set the fire: “I was prepared to testify and send this guy to Old Sparky”—the electric chair.

To discover the truth, the investigators, with the backing of the prosecution, decided to conduct an elaborate experiment and re-create the fire scene. Local officials gave the investigators permission to use a condemned house next to Lewis’s home, which was about to be torn down. The two houses were virtually identical, and the investigators refurbished the condemned one with the same kind of carpeting, curtains, and furniture that had been in Lewis’s home. The scientists also wired the building with heat and gas sensors that could withstand fire. The cost of the experiment came to twenty thousand dollars. Without using liquid accelerant, Lentini and DeHaan set the couch in the living room on fire, expecting that the experiment would demonstrate that Lewis’s version of events was implausible.

The investigators watched as the fire quickly consumed the couch, sending upward a plume of smoke that hit the ceiling and spread outward, creating a thick layer of hot gases overhead—an efficient radiator of heat. Within three minutes, this cloud, absorbing more gases from the fire below, was banking down the walls and filling the living room. As the cloud approached the floor, its temperature rose, in some areas, to more than eleven hundred degrees Fahrenheit. Suddenly, the entire room exploded in flames, as the radiant heat ignited every piece of furniture, every curtain, every possible fuel source, even the carpeting. The windows shattered.

The fire had reached what is called “flashover”—the point at which radiant heat causes a fire in a room to become a room on fire. Arson investigators knew about the concept of flashover, but it was widely believed to take much longer to occur, especially without a liquid accelerant. From a single fuel source—a couch—the room had reached flashover in four and a half minutes.

Because all the furniture in the living room had ignited, the blaze went from a fuel-controlled fire to a ventilation-controlled fire—or what scientists call “post-flashover.” During post-flashover, the path of the fire depends on new sources of oxygen, from an open door or window. One of the fire investigators, who had been standing by an open door in the living room, escaped moments before the oxygen-starved fire roared out of the room into the hallway—a fireball that caused the corridor to go quickly into flashover as well, propelling the fire out the front door and onto the porch.

After the fire was extinguished, the investigators inspected the hallway and living room. On the floor were irregularly shaped burn patterns that perfectly resembled pour patterns and puddle configurations. It turned out that these classic signs of arson can also appear on their own, after flashover. With the naked eye, it is impossible to distinguish between the pour patterns and puddle configurations caused by an accelerant and those caused naturally by post-flashover. The only reliable way to tell the difference is to take samples from the burn patterns and test them in a laboratory for the presence of flammable or combustible liquids.

During the Lime Street experiment, other things happened that were supposed to occur only in a fire fuelled by liquid accelerant: charring along the base of the walls and doorways, and burning under furniture. There was also a V-shaped pattern by the living-room doorway, far from where the fire had started on the couch. In a small fire, a V-shaped burn mark may pinpoint where a fire began, but during post-flashover these patterns can occur repeatedly, when various objects ignite.

One of the investigators muttered that they had just helped prove the defense’s case. Given the reasonable doubt raised by the experiment, the charges against Lewis were soon dropped. The Lime Street experiment had demolished prevailing notions about fire behavior. Subsequent tests by scientists showed that, during post-flashover, burning under beds and furniture was common, entire doors were consumed, and aluminum thresholds melted.

John Lentini says of the Lime Street Fire, “This was my epiphany. I almost sent a man to die based on theories that were a load of crap.”

Hurst next examined a floor plan of Willingham’s house that Vasquez had drawn, which delineated all the purported pour patterns and puddle configurations. Because the windows had blown out of the children’s room, Hurst knew that the fire had reached flashover. With his finger, Hurst traced along Vasquez’s diagram the burn trailer that had gone from the children’s room, turned right in the hallway, and headed out the front door. John Jackson, the prosecutor, had told me that the path was so “bizarre” that it had to have been caused by a liquid accelerant. But Hurst concluded that it was a natural product of the dynamics of fire during post-flashover. Willingham had fled out the front door, and the fire simply followed the ventilation path, toward the opening. Similarly, when Willingham had broken the windows in the children’s room, flames had shot outward.

Hurst recalled that Vasquez and Fogg had considered it impossible for Willingham to have run down the burning hallway without scorching his bare feet. But if the pour patterns and puddle configurations were a result of a flashover, Hurst reasoned, then they were consonant with Willingham’s explanation of events. When Willingham exited his bedroom, the hallway was not yet on fire; the flames were contained within the children’s bedroom, where, along the ceiling, he saw the “bright lights.” Just as the investigator safely stood by the door in the Lime Street experiment seconds before flashover, Willingham could have stood close to the children’s room without being harmed. (Prior to the Lime Street case, fire investigators had generally assumed that carbon monoxide diffuses quickly through a house during a fire. In fact, up until flashover, levels of carbon monoxide can be remarkably low beneath and outside the thermal cloud.) By the time the Corsicana fire achieved flashover, Willingham had already fled outside and was in the front yard.

Vasquez had made a videotape of the fire scene, and Hurst looked at the footage of the burn trailer. Even after repeated viewings, he could not detect three points of origin, as Vasquez had. (Fogg recently told me that he also saw a continuous trailer and disagreed with Vasquez, but added that nobody from the prosecution or the defense ever asked him on the stand about his opinion on the subject.)

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.

Without having visited the fire scene, Hurst says, it was impossible to pinpoint the cause of the blaze. But, based on the evidence, he had little doubt that it was an accidental fire—one caused most likely by the space heater or faulty electrical wiring. It explained why there had never been a motive for the crime. Hurst concluded that there was no evidence of arson, and that a man who had already lost his three children and spent twelve years in jail was about to be executed based on “junk science.” Hurst wrote his report in such a rush that he didn’t pause to fix the typos.

V

“I am a realist and I will not live a fantasy,” Willingham once told Gilbert about the prospect of proving his innocence. But in February, 2004, he began to have hope. Hurst’s findings had helped to exonerate more than ten people. Hurst even reviewed the scientific evidence against Willingham’s friend Ernest Willis, who had been on death row for the strikingly similar arson charge. Hurst says, “It was like I was looking at the same case. Just change the names.” In his report on the Willis case, Hurst concluded that not “a single item of physical evidence . . . supports a finding of arson.” A second fire expert hired by Ori White, the new district attorney in Willis’s district, concurred. After seventeen years on death row, Willis was set free. “I don’t turn killers loose,” White said at the time. “If Willis was guilty, I’d be retrying him right now. And I’d use Hurst as my witness. He’s a brilliant scientist.” White noted how close the system had come to murdering an innocent man. “He did not get executed, and I thank God for that,” he said.

On February 13th, four days before Willingham was scheduled to be executed, he got a call from Reaves, his attorney. Reaves told him that the fifteen members of the Board of Pardons and Paroles, which reviews an application for clemency and had been sent Hurst’s report, had made their decision.

“What is it?” Willingham asked.

“I’m sorry,” Reaves said. “They denied your petition.”

The vote was unanimous. Reaves could not offer an explanation: the board deliberates in secret, and its members are not bound by any specific criteria. The board members did not even have to review Willingham’s materials, and usually don’t debate a case in person; rather, they cast their votes by fax—a process that has become known as “death by fax.” Between 1976 and 2004, when Willingham filed his petition, the State of Texas had approved only one application for clemency from a prisoner on death row. A Texas appellate judge has called the clemency system “a legal fiction.” Reaves said of the board members, “They never asked me to attend a hearing or answer any questions.”

The Innocence Project obtained, through the Freedom of Information Act, all the records from the governor’s office and the board pertaining to Hurst’s report. “The documents show that they received the report, but neither office has any record of anyone acknowledging it, taking note of its significance, responding to it, or calling any attention to it within the government,” Barry Scheck said. “The only reasonable conclusion is that the governor’s office and the Board of Pardons and Paroles ignored scientific evidence.”

LaFayette Collins, who was a member of the board at the time, told me of the process, “You don’t vote guilt or innocence. You don’t retry the trial. You just make sure everything is in order and there are no glaring errors.” He noted that although the rules allowed for a hearing to consider important new evidence, “in my time there had never been one called.” When I asked him why Hurst’s report didn’t constitute evidence of “glaring errors,” he said, “We get all kinds of reports, but we don’t have the mechanisms to vet them.” Alvin Shaw, another board member at the time, said that the case didn’t “ring a bell,” adding, angrily, “Why would I want to talk about it?” Hurst calls the board’s actions “unconscionable.”

Though Reaves told Willingham that there was still a chance that Governor Perry might grant a thirty-day stay, Willingham began to prepare his last will and testament. He had earlier written Stacy a letter apologizing for not being a better husband and thanking her for everything she had given him, especially their three daughters. “I still know Amber’s voice, her smile, her cool Dude saying and how she said: I wanna hold you! Still feel the touch of Karmon and Kameron’s hands on my face.” He said that he hoped that “some day, somehow the truth will be known and my name cleared.”

He asked Stacy if his tombstone could be erected next to their children’s graves. Stacy, who had for so long expressed belief in Willingham’s innocence, had recently taken her first look at the original court records and arson findings. Unaware of Hurst’s report, she had determined that Willingham was guilty. She denied him his wish, later telling a reporter, “He took my kids away from me.”

Gilbert felt as if she had failed Willingham. Even before his pleas for clemency were denied, she told him that all she could give him was her friendship. He told her that it was enough “to be a part of your life in some small way so that in my passing I can know I was at last able to have felt the heart of another who might remember me when I’m gone.” He added, “There is nothing to forgive you for.” He told her that he would need her to be present at his execution, to help him cope with “my fears, thoughts, and feelings.”

On February 17th, the day he was set to die, Willingham’s parents and several relatives gathered in the prison visiting room. Plexiglas still separated Willingham from them. “I wish I could touch and hold both of you,” Willingham had written to them earlier. “I always hugged Mom but I never hugged Pop much.”

As Willingham looked at the group, he kept asking where Gilbert was. Gilbert had recently been driving home from a store when another car ran a red light and smashed into her. Willingham used to tell her to stay in her kitchen for a day, without leaving, to comprehend what it was like to be confined in prison, but she had always found an excuse not to do it. Now she was paralyzed from the neck down.

While she was in an intensive-care unit, she had tried to get a message to Willingham, but apparently failed. Gilbert’s daughter later read her a letter that Willingham had sent her, telling her how much he had grown to love her. He had written a poem: “Do you want to see beauty—like you have never seen? / Then close your eyes, and open your mind, and come along with me.”

Gilbert, who spent years in physical rehabilitation, gradually regaining motion in her arms and upper body, says, “All that time, I thought I was saving Willingham, and I realized then that he was saving me, giving me the strength to get through this. I know I will one day walk again, and I know it is because Willingham showed me the kind of courage it takes to survive.”

Willingham had requested a final meal, and at 4 P.M. on the seventeenth he was served it: three barbecued pork ribs, two orders of onion rings, fried okra, three beef enchiladas with cheese, and two slices of lemon cream pie. He received word that Governor Perry had refused to grant him a stay. (A spokesperson for Perry says, “The Governor made his decision based on the facts of the case.”) Willingham’s mother and father began to cry. “Don’t be sad, Momma,” Willingham said. “In fifty-five minutes, I’m a free man. I’m going home to see my kids.” 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.”

The warden told Willingham that it was time. Willingham, refusing to assist the process, lay down; he was carried into a chamber eight feet wide and ten feet long. The walls were painted green, and in the center of the room, where an electric chair used to be, was a sheeted gurney. Several guards strapped Willingham down with leather belts, snapping buckles across his arms and legs and chest. A medical team then inserted intravenous tubes into his arms. Each official had a separate role in the process, so that no one person felt responsible for taking a life.

Willingham had asked that his parents and family not be present in the gallery during this process, but as he looked out he could see Stacy watching. The warden pushed a remote control, and sodium thiopental, a barbiturate, was pumped into Willingham’s body. Then came a second drug, pancuronium bromide, which paralyzes the diaphragm, making it impossible to breathe. Finally, a third drug, potassium chloride, filled his veins, until his heart stopped, at 6:20 P.M. On his death certificate, the cause was listed as “Homicide.”

After his death, his parents were allowed to touch his face for the first time in more than a decade. Later, at Willingham’s request, they cremated his body and secretly spread some of his ashes over his children’s graves. He had told his parents, “Please don’t ever stop fighting to vindicate me.”

In December, 2004, questions about the scientific evidence in the Willingham case began to surface. Maurice Possley and Steve Mills, of the Chicago Tribune, had published an investigative series on flaws in forensic science; upon learning of Hurst’s report, Possley and Mills asked three fire experts, including John Lentini, to examine the original investigation. The experts concurred with Hurst’s report. Nearly two years later, the Innocence Project commissioned Lentini and three other top fire investigators to conduct an independent review of the arson evidence in the Willingham case. The panel concluded that “each and every one” of the indicators of arson had been “scientifically proven to be invalid.”

In 2005, Texas established a government commission to investigate allegations of error and misconduct by forensic scientists. The first cases that are being reviewed by the commission are those of Willingham and Willis. In mid-August, the noted fire scientist Craig Beyler, who was hired by the commission, completed his investigation. In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire. He said that Vasquez’s approach seemed to deny “rational reasoning” and was more “characteristic of mystics or psychics.” What’s more, Beyler determined that the investigation violated, as he put it to me, “not only the standards of today but even of the time period.” The commission is reviewing his findings, and plans to release its own report next year. Some legal scholars believe that the commission may narrowly assess the reliability of the scientific evidence. There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the “execution of a legally and factually innocent person.”

Just before Willingham received the lethal injection, he was asked if he had any last words. He said, “The only statement I want to make is that I am an innocent man convicted of a crime I did not commit. I have been persecuted for twelve years for something I did not do. From God’s dust I came and to dust I will return, so the Earth shall become my throne.”

Source(www.newyorker.com)

Petition to Protest Todd Willingham's Execution

Todd Willingham was innocent and Texas executed him. Texas should halt all executions.

To: Texas Governor Rick Perry

The State of Texas should halt all executions in light of the news that the investigator hired by the Texas Forensic Science Commission has concluded that the fire in the Cameron Todd Willingham case was accidental and not arson. Willingham was executed for arson/murder in 2004. In fact, there was no arson, so there was no crime. Texas executed an innocent person.

Governor Perry and the Texas Board of Pardons and Paroles were provided a report written by fire expert Gerald Hurst before Willingham's execution that cast considerable doubt on the conclusion that the fire was arson. They both ignored Hurst's report. Now, they have a responsibility to take action to ensure that Texas does not execute another innocent person.

Governor Perry, you should urge the Texas Board of Pardons and Paroles to recommend stays for all people who currently have scheduled execution dates in Texas. You should also urge all district attorneys and judges in Texas to stop setting new execution dates and to withdraw all pending execution dates. You may not have the legal authority to unilaterally impose a moratorium, but you can act to create a consensus among judges, district attorneys and the Texas Board of Pardons and Paroles to stop executions. As the Governor of this state, you have the duty to actively pursue and repair the flaws of a broken system.

The Texas system of carrying out executions must be suspended. The Texas system of carrying out executions must be suspended. Governor Perry, you should appoint a balanced and independent commission to examine all aspects of the Texas death penalty system to determine what went wrong in the Willingham case and how to prevent the execution of innocent people. Abolishing the death penalty is the only way to guarantee that another innocent person is never again executed, but a moratorium by consensus will prevent another innocent person from being executed in the short term until the Texas legislature is in session and can take up the issues raised by Texas' execution of an innocent person.

This petition was created and written by Texas Moratorium Network. If you have questions, call TMN at 512-961-6389. If you are shocked to learn that Texas has executed an innocent person, please attend the 10th Annual March to Abolish the Death Penalty on October 24, 2009 in Austin, Texas.

The petition can be signed here or clik on the header:
http://www.stumbleupon.com/s/#2Pqwyo/camerontoddwillingham.com/?page_id=6/

Source(www.stumbleupon.com)

CONGO: Death penalty for 2 Norwegians

A military prosecutor in Congo asked a court to sentence to death 2
Norwegians accused of killing their driver in the lawless east of the
country in May this year.

The Norwegians, Joshua French, 27, and Tjostolv Moland, 28, were charged
with murder, attempted murder, espionage, conspiracy and armed robbery
after their driver was found dead with a gunshot wound to his head east of
the city of Kisangani.

"May it please the garrison military court to say that the accusations
against Tjostolv Moland and Joshua (French) are established and to
sentence them ... to the death penalty," prosecutor Major Jean Blaise Bwa
Mulundu said.

The Norwegians had previously served in Oslo's armed forces. Norwegian
diplomats say contacts between the accused and their country's military or
any other official organisation were discontinued in 2007.

It is not clear what the 2 accused were doing in the area. Ex-soldiers are
frequently taken on by private security companies who have stepped up
interest in the region due to oil discoveries under Lake Albert, which
lies on the border between Democratic Republic of Congo and Uganda.

Mulundu requested the death penalty for each of the 5 charges against the
2 defendants.

The verdict is expected to be handed down by the military court next week.

The men were travelling in Congo's northeastern Orientale province, which
is still unstable and plagued by armed groups 6 years after the country's
war officially ended.

But the region is starting to attract investors after the discovery of
billions of barrels of oil on the Ugandan side of the border by
London-listed Tullow Oil and Heritage Oil.

Source(Reuters)

Tarnished justice

Misconduct trial of Judge Keller depicts a court of confusion.

Being Texas Court of Criminal Appeals Presiding Judge Sharon Keller apparently means never having to say you're sorry, even if your actions have brought worldwide scorn upon the state's highest criminal court.

At the core of a five-count complaint by the State Commission on Judicial Conduct is the charge that Keller violated established court procedure by refusing to keep the court clerk's office open past 5 p.m. on Sept. 25, 2007, to accept a last-minute stay of execution request by lawyers for death row inmate Michael Richard, a convicted rapist and murderer. As a result, he was executed as scheduled that evening in Huntsville.

A four-day trial conducted in San Antonio by a special master, District Judge David Berchelmann Jr., concluded last week. He will now recommend to the commission whether the charges should be dropped or the judge reprimanded or even removed from office. That process could take months or even years.

Elected to the court in 1994 and presiding judge for eight years, former prosecutor Keller has amassed a reputation for upholding sentences and outraging legal scholars. In one case she dismissed DNA evidence that appeared to exonerate a convicted rapist by arguing that he could have worn a condom. He was later released from prison and pardoned. However, the controversy and consequences surrounding her “nine to five” decision undoubtedly will make it her greatest career hit.

“I just don't think anybody did anything wrong,” testified Keller at the trial. In answer to a prosecutor's question, she said she wouldn't do anything differently.

Keller not only refused to keep the office open to take an appeal, but she failed to inform Richard's defense team or fellow judges about the situation. She did not tell the judge who was on call to take any last minute appeals, Cheryl Johnson, that the defense lawyers were trying to file such a motion. The unwritten court procedure required any communications involving the execution to be relayed to the on-call judge.

Johnson testified, “I was frustrated that the protocol had not been followed.”

Keller also didn't instruct subordinates to tell the lawyers that there was a judge staying at the court late for that purpose. As a result, no stay was filed, despite the fact that the U.S. Supreme Court had earlier in the day issued a ruling effectively halting lethal injection executions pending review of the technique's legality. Eventually, the high court decided lethal injection executions could resume.

Incredibly, Keller's defense at the San Antonio proceeding was that she was just enforcing office hours and not preventing the Richard appeal from being filed. After all, her attorney Chip Babcock argued, the lawyers could have contacted other court judges. In fact, no one outside the court knew there was a judge on call, and court policy requires lawyers with appeals to go through the court clerk rather than contacting judges. For Keller now to say that the issue was not a substantive life and death matter, but rather a question of office hours, is laughable on its face.

Even less believable was a claim by the court's former general counsel, Ed Marty, that he had told Judge Johnson about the defense lawyer's request for additional time. Judge Johnson flatly denied that and testified Marty had simply said no filing had come in. Why would Judge Johnson have stayed late at the court waiting for that appeal to be filed if she knew it had already been rebuffed?

As with many a defendant who has used technicalities to evade conviction, Judge Keller will likely get off with a hand slap. But she committed gross negligence of her duty to provide impartial justice to all, even convicted murderers. If she does run for re-election in 2012, voters should replace her with a jurist who takes seriously his or her oath of office.

Source(www.chron.com)

Keller is unsuited for top court job

Even in Texas, the execution of a convicted murderer is not a commonplace occurrence. When the state is prepared to administer the ultimate, irreversible sanction of justice, its officials must ensure that the judicial process has functioned with meticulous care. A human life is at stake.

Sharon Keller has demonstrated herself to be unfit to serve as the highest judge on Texas’ highest criminal appeals court. The state Commission on Judicial Conduct properly prosecuted Keller for judicial misconduct in the case of death row inmate Michael Richard.

On the day of Richard’s scheduled execution in 2007, the U.S. Supreme Court announced that it was going to consider a case that would determine whether execution by lethal injection amounted to unconstitutionally cruel and unusual punishment. Richard’s attorneys had contacted Keller, the presiding judge on the Texas Court of Criminal Appeals, indicating they were planning to file an appeal on that basis.

The Supreme Court case led to a seven-month moratorium on lethal injections. But not before Texas sent Richard to the death chamber. Despite the news from Washington, Keller refused to keep the court clerk’s office open past 5 p.m. to receive the appeal from Richard’s attorneys.

Keller’s defense is that Richard’s attorneys failed to knock on the right doors and weren’t persistent enough. But Richard’s attorneys don’t represent the power of the state and don’t have the same professional and ethical responsibilities as a judge on the Court of Criminal Appeals.

Keller’s actions are at issue, not those of Richard’s attorneys. The judge failed to follow standard procedure for after-hours appeals in death penalty cases. That’s why she faces five counts of official judicial misconduct. In the end, the Supreme Court ruled that lethal injections are constitutional. Richard, who had been on death row for two decades for the gruesome rape and murder of Marguerite Dixon, would have been executed anyway — without questions about the impartiality of Texas justice.

Keller’s irresponsible actions have brought disrepute on the Texas criminal justice system. Worse, they’ve unnecessarily shifted the focus away from the true victim in this case — Dixon.

One step toward restoring confidence in the system is to hold Keller accountable for the events that took place in 2007 and remove her as presiding judge of the Court of Criminal Appeals.

Source(www.mysanantonio.com)

Senator Edward "Ted" Kennedy on Death Penalty Information Center

WATCH IT on youtube :

http://www.youtube.com/watch?v=lhNy-fS5whg

Human Rights News: 8/29

This week, a report by the CIA inspector general called for a full criminal investigation into post-9/11 detainee abuse by the Bush administration. US Attorney General Eric Holder announced on Tuesday his plans for a preliminary review of torture allegations.

The CIA report, analyzing detention and interrogation activities, was actually completed in April 2004 but was suppressed from publication, despite the Freedom of Information Act. Some sections still remain "top secret" and shielded from public eyes. The report covers the period from September 2001 to October 2003, detailing a range of CIA abuses that constitute torture under US and international law.

According to Rob Freer, Amnesty International's researcher on the USA, this investigation cannot come soon enough. "The USA needs to ensure that every case of torture is submitted for prosecution, whether or not perpetrators claim to have been following orders, and those who authorized or ordered the commission of torture or other criminal abuse of detainees must also be brought to justice." He also calls for the establishment of an independent commission of inquiry to probe detainee treatment throughout the "War on Terror". He maintains that the commission "must not be used to block or delay the prosecution of any individuals against whom there is already sufficient evidence of criminal wrongdoing," including senior officials who authorized or inspired the use of torture by lower-level CIA operatives.

The report includes descriptions of various abusive practices, such as exposing prisoners held in secret to mock executions, the brandishing of guns and electric drills, threats to kill other prisoners' children, waterboarding, and other forms of torture. According to Human Rights Watch, the US's track record for punishing these types of prisoner abuse has been "abysmal", despite plentiful evidence. No CIA operative has ever been held accountable, and only a few military personnel have been held to justice.

Source(ucbamnesty.blogspot.com)

New Moratorium Hopes

An anti-death penalty group hopes new evidence that Texas may have executed an innocent man will finally put the death chamber on pause. The Chicago Tribune reports that an expert hired by the Texas Forensic Science Commission says the fire that killed Cameron Todd Willingham’s three daughters was accidental, not arson. Willingham was convicted, sentenced to death and executed in 2004 for setting that fatal fire. The Texas Moratorium Network’s Scott Cobb says that should change public and legislative opinion about a death penalty moratorium. “People of Texas and the policymakers take very seriously the possibility of an innocent person being executed and how that reflects on Texas.” This expert is not the first to come to the conclusion that the fatal fire was an accident and not arson.

Source(lonestartexasnews.com)

Sharon Keller, Troy Davis, and the Duty of a Death Case Judge

That's the title of Steve Sheppard's FindLaw commentary, posted today. Sheppard is the Judge Enfield Professor of Law at the University of Arkansas School of Law. He's also the author of I Do Solemnly Swear: The Moral Obligations of Legal Officials. LINK

No obligation of a judge is more awful than to rule on who should live and who should die at the hands of the state. No process more defines the American legal system: We put our worst criminals to death, but we do so while protecting rights under the law. Though the jury's sentence is the fulcrum of every decision, no person may die without a legislative decree that their conduct deserves death, and without judicial approval of the conviction and the sentence.
Many judges grow weary and callous from the endless claims of America's three thousand death-row inmates, of whom a dozen are yet scheduled to die in 2009. In 1996, Congress, angry with the slow pace and high costs of execution, passed the Antiterrorism and Effective Death Penalty Act ("AEDPA"), creating new technical rules to speed the guilty on their way.
Yet the law, the judges, and especially the people in whose name all this is done, can never allow a single case to escape the most perfect scrutiny possible, or the law jeopardizes its deepest claims to authority and trust. We—officials and citizens—have a duty to ensure that the protections of the laws are secure, and that we execute only the person guilty of the crime accused. Otherwise we violate the American commitment to freedom, truth, and the rule of law.
Two cases last week illuminated the dangers of callousness, of technical limits to scrutiny, and of speed in itself. At the same time, their stories offer hope that the judicial duty of scrutiny and the commitment to truth and freedom persist in U.S. law.
And:
The technical rules of law are not an end in themselves, but a means of assuring fairness between the parties and the substantive fairness of the law. Judges who rely on such rules to avoid the merits, and legislators who demand they do so, betray the judicial obligation to ensure justice.
In a death case, this obligation is put into high relief. The law ought not to allow a person to die because a brief is half an hour late, or because evidence is found after a first habeas petition is denied. Every juror who relied on the wrong evidence, every judge who signs an order, every citizen who obeys this system must have confidence that the person who dies deserves to die. There is no solace in killing the innocent by fair techniques.
Innocence in a death case must prevail over all technicalities. That Judge Keller must answer for her technical foul is right, even if she is not punished for it. That Davis will finally have his hearing is essential, even if the evidence is found insufficient.
What the technical problems in both cases suggest, though, is more significant. Justice Scalia is right: We have never read the Due Process of Law to guarantee that someone demonstrably innocent shall not be put to death. Yet that, at its heart, is what the law must demand.

Source(standdown.typepad.com)

Editorial: Judge Keller's disappointing testimony

It was impossible not to gasp last week when Texas Court of Criminal Appeals Presiding Judge Sharon Keller addressed the question of what she would do differently if she had a do-over in the execution of Michael Richard.

Nothing. That was the essence of Keller's answer at her misconduct trial. It is as disturbing now as it was when news broke of her infamous "we close at 5" directive to court personnel minutes before Richard's execution was scheduled to be carried out in September 2007.
Her defense is built on a thinly sliced interpretation of procedures that offend the expectation that Texas courts should be accessible and blindly fair.
Keller's supporters may ask what fairness Richard showed to 53-year-old Houston-area nurse Marguerite Lucille Dixon when he entered her home, raped her and shot her in the head. Answer: none. Nor have we seen evidence to question his guilt.
That's not the point. Instead, consider that the next person with a last-minute appeal might have compelling information about the miscarriage of justice. Anyone who is aware of Texas' record number of DNA exonerations should be mindful of that.
Keller asserts that Richard's attorneys should have known that her statement about closing pertained only to the courthouse doors and not to a duty judge who was working late. Appellate attorneys were having computer problems and were scrambling against the filing deadline. But it appears that even court personnel have had differing interpretations of the events of that evening.
No matter; as the presiding judge, she should have made sure there were no gray areas where life-and-death matters were concerned that night. Procedures guaranteeing last-minute access should be enunciated to any involved party as time runs out. The court must not assume general understanding and merely recite technicalities.
Revised court procedures in the wake of the Richard case suggested that the nine-member court knew change was due. Weeks later, the judges issued written guidelines including a new e-filing system for death appeals.
Despite those improvements made in her own court, Keller's testimony indicated no regrets about that night, amplifying her reputation as a pro-prosecution judge indifferent to fair play. Like it or not, she made herself the face of Texas courts in 2007. Unfortunately, her testimony last week did nothing to dispel the notion that ours is a callous system of justice.

Source(http://www.dallasnews.com/)

My thanks to maligned Judge Keller

I'd like to express my gratitude to Texas Court of Criminal Appeals Presiding Judge Sharon Keller.
She has made Texas' supreme court for criminal matters into a better institution.
Unfortunately, she didn't do it by bringing organizational skills to a court that must deal more than any other state court in the nation with the pressures of last-minute appeals in death penalty cases.
But she did it.
The firestorm of criticism that followed her decision not to keep the clerk's office open for a late filing, based on a U.S. Supreme Court decision from earlier in the day, of a man scheduled to be executed an hour after closing time, has produced some improvements.
According to her own testimony and that of other court officials during this week's four-day trial, the court had a protocol for dealing with execution day filings, but it was something of a secret.
For one thing, it wasn't written.
For another, the court staff was not given any formal training on it.
Part of the procedure was the appointment, on a rotating basis, of a single judge to whom all communications regarding the pending execution would be directed. But the name of that judge was not to be disclosed to anyone outside the court, including lawyers for the condemned man.
In Keller's seven years as the court's chief judge, that was the state of things.
Now, due to the allegations that she violated that procedure by not referring the call seeking to file a late plea for a stay of execution to Judge Cheryl Johnson, the assigned judge for that execution day, everyone knows the procedures.
The court's judges, some of whom were waiting around in expectation of a filing and were angered to learn days later of Keller's actions, agreed to put the protocol in writing. And the protocol has been widely publicized in the controversy.
There is another improvement. Ed Marty, the general counsel who took the request to Keller rather than to Johnson (who testified she would have accepted late pleadings), retired.
His replacement, Sian Schilhab, said she contacts the appropriate attorneys days ahead of the prosecution to make sure they know she is available up until the execution takes place. She said she not only gives them her cell phone number, but forwards the office phone to her cell.
She also says all outside communications not only “clearly go to the assigned judge, but I try to communicate them to all the judges, or at least their staffs.”
She said that's not because of the recent controversies, but because “I believe in more communication rather than less.”
If Keller had instructed Marty to do that, we wouldn't have had this firestorm.
Keller's attorney argued this week that the defense lawyers had orchestrated media coverage creating the firestorm.
Truth in advertising
The coverage was not always fair and not always accurate, but I'd suggest that Keller herself made the ground fertile for belief that she would violate court policy to coldly reject the last-minute appeal.
When she first ran for the court in 1994 she wrote in the Dallas Morning News that she was “pro-prosecutor.” It was truthful advertising.
When DNA evidence showed a man imprisoned for raping a girl who was also murdered did not contribute the semen, she ruled against his appeal, saying he might have worn a condom.
When prosecutors put on an expert in another case who testified a convicted man was a threat to society and therefore should get the death penalty because he was Hispanic, she voted not to require a new sentencing proceeding. The U.S. Supreme Court disagreed.
When a district judge ruled that the evidence “unquestionably established” that a man had been pressured into falsely confessing to raping his stepdaughter, Keller voted with the minority against his release from prison.
I'll say this for her. She is hard working. In the midst of this week's trial, she voted not to hear an appeal in a death penalty case. Six of the nine members of the all-Republican court voted the other way.

Source(http://www.chron.com/)

Calif. Assembly balks at early release of inmates

California Assembly Speaker Karen Bass plans to strip the most controversial provisions from a Senate-approved plan that would have trimmed the state's prison population by 27,000 inmates.

The Assembly version would keep about 10,000 more inmates behind bars and leave the state with a new, nearly $200 million budget hole, Bass said early Friday.

Bass said the new plan — to be considered Monday — would do away with proposals by Gov. Arnold Schwarzenegger to allow home detention with electronic monitoring for inmates with less than 12 months to serve, who are over age 60 or who are medically incapacitated.

The Democrat-controlled Assembly will also reject the Republican governor's plan to lower sentences for certain property crimes to misdemeanors, making those offenders ineligible for prison. But the Assembly plan would let inmates earn up to four months of early release credits for completing educational, vocational and other rehabilitation programs, up from six weeks in a proposal narrowly approved Thursday in the state Senate.

Bass, a Democrat from Los Angeles, announced the new plan after she was unable to find enough Democratic votes to send the Senate plan to Schwarzenegger. Republicans remained adamantly against both versions of the package in both chambers.

"Some of my members thought it should have gone further, and others thought that it went too far," Bass told reporters after adjourning just before midnight. "You do have a lot of hysteria that was whipped up. We were going to release all these people, and that scares folks."

The Assembly's passage of an alternative plan would require the bill to go back to the Senate for its agreement next week.

Bass huddled with Schwarzenegger and Democratic Senate President Pro Tem Darrell Steinberg of Sacramento in the governor's office before she decided to alter the Senate plan.

The governor is "committed to working with the Legislature to pass a package that puts public safety first, avoids early release, and achieves the necessary budgetary savings," Schwarzenegger spokesman Matt David said after the meeting.

The administration previously said failure of the bill would force California to find other ways to release inmates, in part because federal judges this summer ordered the state to reduce its inmate population by 40,000 over two years.

Schwarzenegger had sought the changes as part of his plan to cut $1.2 billion from corrections spending. The Senate approved the plan 21-19, but the dynamics are different in the Assembly. For instance, three Democratic Assembly members are planning to run for state attorney general next year. They are reluctant to vote for any bill that might make them appear soft on crime.

Republicans offered angry denouncements as the debate unfolded earlier Thursday on the Senate floor. They said provisions to reduce some crimes to misdemeanors, release certain inmates before they have completed their sentences and ease conditions for parole would be a threat to public safety.

Sen. George Runner, R-Lancaster, promised a future ballot initiative to repeal the bill if it becomes law.

The debate over prison spending and California's chronic inmate overcrowding took on renewed urgency when more than 1,000 inmates rioted Aug. 8 at the California Institution for Men in Southern California. The prison was designed to hold about half as many inmates, although investigators say they don't know if crowding helped spark the racially charged riot.

Thursday's debate was a holdover from the budget-balancing deal lawmakers and Schwarzenegger struck a month ago. They said at the time that cutting $1.2 billion from the corrections budget was part of their plan to close a deficit then estimated at $26 billion, but they delayed debate on the details until they returned this week from their summer break.

Bass said the Assembly would also make minor changes to the Senate's plan to establish a commission to review California's sentencing guidelines. Opponents fear its primary mission would be to determine whether some sentences could be lessened as a way to take pressure off an overcrowded prison system.

The Assembly will reject including an ex-felon as a nonvoting member, and add other representatives from law enforcement and community groups that help ex-felons, Bass said.

The commission's guidelines would be due by July 2012. The changes would take effect automatically unless they were rejected by the governor and a majority vote in the Legislature.

Source(The Associated Press)

Former Ohio executioner: EMT experience can be an asset

COLUMBUS -- While others debate the death penalty and lethal injection, Ohio's longest-serving executioner provided a personal perspective on carrying out the unwanted job, saying his experience as an emergency medical technician helped him handle the stress.

Known as Team Member 18, the now-former executioner testified in March in an ongoing federal case brought by Ohio death-row inmates.

Separately, a state lawyer's legal opinion requested by the office that oversees EMTs said Wednesday that the state cannot stop emergency medical technicians from serving as members of Ohio's execution team.

"I have had to deal with death and dying on a daily basis as a paramedic," Team Member 18 testified.

He said the state never trained him in the use or makeup of the lethal drugs used in executions. Instead, he relied on his EMT experience when trying to figure out if the first drug had put a death row inmate to sleep.

"Thirty years of experience in monitoring patients," he said. "Watching for vital sign changes, watching for movement changes, just watching the person as I would if it was a person in my care."

He said he didn't keep a tally of executions and couldn't always remember individual cases.

"I don't keep that close a track on it," he said. "It's a job I do, and I just don't try to recall."

U.S. District Court Judge Gregory Frost allowed the executioner and three other execution team members to answer questions anonymously and to sit behind a blackboard. Frost later ruled that Ohio's lethal injection system was flawed but not unconstitutional.

Jonathan Groner, an Ohio State University surgeon and former member of the board that regulates EMTs, maintains they are breaking the law by administering drugs beyond what their certification allows.

But Wednesday's legal opinion found the State Emergency Medical Services Board has no jurisdiction to investigate the issue because the technicians are not acting as EMTs when putting people to death. Instead, the EMTs are included on the state execution team because they possess skills such as inserting intravenous needles, not because they are working as EMTs under medical direction, the opinion said.

The Department of Rehabilitation and Correction has two certified EMTs on its execution team. Team Member 18, who retired last month, was replaced by another EMT.

Team Member 18 said he agreed to join the execution team in 1993 out of a belief that executions should be done as professionally and humanely as possible.

"I just felt, at that time, and always have, that it needed to be handled in a professional, humane manner, and that it should be someone with training," he testified.

The executioner oversaw 27 of 29 executions since the state began putting people to death again in 1999.

Team Member 17, a backup executioner who also inserted IVs in condemned inmates' arms, also testified he wasn't trained in using the drugs.

Mark Heath, an anesthesiologist at Columbia University Medical Center who has studied lethal injection cases across the nation, testified in the same case that the executioner shouldn't administer the drugs because he lacks training and understanding of how they work.

The prison system maintains execution team members are qualified, and the agency has no qualms about their training.

In May, North Carolina's state Supreme Court ruled that physicians cannot be punished for participating in executions. The court said the North Carolina Medical Board overstepped its power with a threat to discipline doctors who participate in executions.

Source(www.newarkadvocate.com)

Research Links Historical Lynchings to Modern Murder Rates and Capital Punishment

Recent research has revealed a close correlation between the U.S. states that historically carried out the most lynchings and the states that today have the highest homicide rates and most death sentences. In a study led by sociologist Steven Messner of the State University of New York at Albany, county data from 10 southern states where historically reliable information on vigilante lynchings between 1882 and 1930 is available were examined (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee). The study then compared this information to more recent homicide data compiled from 1986 to 1995 by the FBI and National Center for Health Statistics. The comparison revealed that the counties with the most lynchings had the highest homicide rates, and the counties with fewer lynchings had comparatively fewer murders, even when researchers controlled for factors such as population, poverty, low levels of education, the percentage of young people in the population, the unemployment rate, and the percentage of single-parent households. Messner noted that "lynching seems to matter and is relevant to our understanding of contemporary lethal violence" in the South. The latest issue of the American Sociological Review contains more information about this study.

In a second study conducted by sociologists David Jacobs and Jason T. Carmichael of Ohio State University and Stephanie L. Kent of the University of Nevada, Las Vegas, research revealed that the number of death sentences for all criminals - black and white - was higher in states with a history of lynchings. The link was particularly strong when the researchers analyzed only death sentences for black defendants. The sociologists theorize that the death penalty became a legal replacement for the lynchings of the past, and that the number of death sentences in states with the most lynchings increased as the state's population of African Americans grew. The researchers noted that this trend suggests that "current racial threat and past vigilantism largely directed against newly freed slaves jointly contribute to current lethal but legal reactions to racial threat." This research will be published in an upcoming issue of the American Sociologial Review.

(Washington Post, September 25, 2005, Outlook section, p.B5). See Arbitrariness and Race.

Source(www.deathpenaltyinfo.org)

EMT board ducks death-penalty flap

The Ohio EMS board has no authority over the emergency medical technicians who administer lethal drugs in state executions.

That's the opinion board lawyer Heather R. Frient made public yesterday during the board's meeting.

Board members asked Frient to determine whether these technicians were under their jurisdiction. Under state law, intermediate EMTs are not authorized to work with these drugs.

But these technicians are an exception, Frient said.

"They do not appear to be acting as EMTs in the performance of their execution duties," she wrote in the opinion.

The issue was first brought up by Dr. Jonathan Groner, a pediatric surgeon at Nationwide Children's Hospital and former board member.

Groner said his concern was prompted by the testimony of two intermediate EMTs in a federal case filed by an Ohio Death Row inmate challenging lethal injection.

The case, filed in 2004, is pending.

Frient said these technicians:

• Don't "represent themselves" as EMTs on the execution team.

• Don't wear clothes that identify them as emergency-medical workers.

• Don't work under a physician's direction.

But in court documents, the EMTs testified that they have certificates issued by the EMS division, take continuing education classes and keep up with all state requirements.

Groner said he was disappointed with the opinion.

"When you obtain medical-profession skills -- a doctor, nurse or EMT -- those skills you use to help people should never be used to harm people," said Groner, who opposes the death penalty.

The procedure that state officials follow during executions states that the lethal drugs should be given by a "person qualified under Ohio law to administer medications."

In Ohio, physicians, nurses and paramedics working under a doctor's order are allowed to administer these drugs.

State corrections officials have said they would not ask physicians or nurses to be involved in executions because it conflicts with their oaths to preserve lives.

"The EMS board is put in the position where it does not think EMTs are as professional as other medical professions," Groner said.

The governor is satisfied with the execution process.

"He believes the system established and carried out by (the Department of Corrections) is appropriate," said spokeswoman Allison Kolodziej.

Mark Burgess, EMS board chairman, said he agreed with the opinion because "there are times when we don't have jurisdiction."

He said hospitals often hire paramedics, teach them new skills and call them surgical technicians, for example.

"And we don't have jurisdiction over them," he said. "They're not functioning as a paramedic."

The board didn't challenge or disagree with the opinion, though one member said the discussion might not be over.

"I think it may be something we've got to look at closer," said William Quinn, who represents the Ohio Association of Professional Firefighters on the board.

"It appears to open a Pandora's box."

Source(www.dispatchpolitics.com)

Ohio can't stop EMTs working as executioners

Ohio has no authority to stop certified emergency medical technicians from working as executioners in death penalty cases because they are not acting as EMTs when putting people to death, a state attorney ruled Wednesday.

The EMTs are included on the state execution team because they possess skills such as inserting IV needles, not because they are working as EMTs under medical direction, according to the legal opinion by Heather Frient, a lawyer with the Ohio Department of Public Safety.

The Department of Rehabilitation and Correction has two certified EMTs on its execution team. The state's chief executioner, who was an EMT, retired last month. He was replaced by another EMT, prisons spokeswoman Andrea Carson said.

The retired executioner and a current team member who is also an EMT explained their death penalty duties at a March hearing in federal court about Ohio's lethal injection system.

Jonathan Groner, a surgeon who studies lethal injection, maintains that the team members are violating Ohio law because they administer drugs that EMTs are not allowed to handle.

Frient's ruling didn't address this issue since it found only that the State Emergency Medical Services Board has no jurisdiction to investigate EMTs for such alleged violations.

"The individuals do not wear any EMT insignia or uniform, they do not refer to themselves as EMTs (nor does DRC refer to them as EMTs)," Frient wrote.

She added: "it does not appear, based on their testimony, that they think of themselves as EMTs during the execution process."

Groner said the ruling appears to set a lower ethical standard for EMTs than doctors or nurses.

"When you're in a car crash or your mother's having a heart attack, the first person on the scene are the EMTs, so why shouldn't EMTs have moral standards that are equal?" said Groner, a former member of the EMS board.

The board frequently looks at cases where EMTs are hired by hospitals because of their skills but not to work as EMTs, said Richard Rucker, the EMS board executive director.

"They're not holding themselves out as an EMT, so I don't see that as any different in this current situation working with Corrections," he said.

The state's former executioner was a longtime prison employee who had once worked as a prison EMT, although not recently.

The executioner, referred to in court as "Team Member 18," testified in March he volunteered for the execution team because he felt the job should be done right.

"I just felt, at that time, and always have, that it needed to be handled in a professional, humane manner, and that it should be someone with training," he said.

Source(www.portclintonnewsherald.com)

Take a direct approach to racial justice

State legislators and Gov. Bev Perdue should play it straight about the death penalty: Just put an end to it.

There are too many problems with implementation, too much inconsistency in application. Public opinion is slowly turning against it and juries are more reluctant to impose it. It’s time to replace capital punishment with life in prison without parole.

Creating the Racial Justice Act simply adds more confusion and inequity.

When Perdue signed the bill into law last week, she declared it ensures that when “our most heinous criminals” are given the death penalty — which she says she supports — the decision is based “on the facts and the law, not racial prejudice.”

That’s a fine objective, but the Racial Justice Act offers no such assurance.

There’s no question that “racial prejudice” has accounted for shameful injustices. But the answer to disparate treatment in the courts based on racial prejudice is not to require disparate treatment based on racial distinctions. That’s what this law does.

It allows a judge to prohibit a capital prosecution or overturn a death sentence if the defendant shows statistically that death sentences were sought or imposed “significantly more frequently” against persons of his race within the county, prosecutorial district, judicial division or state.

What is “significantly more frequently” is not defined.

What is clear is that the death penalty decision need not have anything to do with the defendant’s case. He may have committed the most horrifying, vicious, detestable murder imaginable, yet he will be able to present himself as a potential victim of racial discrimination if the death penalty has been imposed “significantly more frequently” against members of his race.

Black offenders make up 54 percent of the 163 men and women on North Carolina’s Death Row, far out of proportion to their numbers in the general population. That alone may be viewed as “proof” of racial discrimination.

Because of this law, everyone on Death Row is entitled to seek relief on the grounds that race was a “significant factor” in the imposition of the sentence.

Even some white offenders might have a case because the law also recognizes that there’s a correlation between death sentences and the race of the victim.

There is, when the victims are white. So even white Death Row inmates, if their victims were white, may claim racial injustice.

No wonder prosecutors opposed this bill. It’s going to set off a slew of time-consuming, costly and confusing legal actions and create several tiers of Death Row justice.

If you’re white and your victim was black, you’re probably staying on Death Row. Justice was done.

If you’re black and your victim was white, you’ll probably see your sentence commuted to life in prison. You were discriminated against.

If you’re black and your victim was black, or you’re white and your victim was white, you’re somewhere in the middle. As for other races, there’s probably not enough statistical evidence to determine the amount of racial discrimination you experienced in court.

Regarding new prosecutions, the Eve Carson case could be a test for the Racial Justice Act but for an unusual twist. The white UNC student was kidnapped, robbed and murdered in Chapel Hill last year. Two young black men are charged. One, Demario Atwater, is old enough to face the death penalty. The Orange County district attorney said he will seek a capital prosecution. The Racial Justice Act would give Atwater the chance to contend his prosecution was motivated by race, not the actual crimes.

Back in January, however, the U.S. Department of Justice announced it would seek the death penalty under federal law. It looks as if the federal case will proceed first, and the state’s Racial Justice Act will have no bearing on it.

It all leaves too much to chance and potential manipulation. The death penalty has never been administered evenhandedly and without error. It can’t be. And let’s not deceive ourselves. The state will never execute all 163 individuals living on Death Row today. Maybe a handful.

So what’s really going to be gained by having dozens of “racial justice” hearings at who-knows-what cost?

Here’s my suggestion. Gov. Perdue should commute the sentences of every last one of them, all 163, white, black, Hispanic, whatever, to life in prison without parole.

Now that’s the direct approach to racial justice.

Source(www.news-record.com)

Interview with Dean

http://www.justice.eku.edu/courses/cor320/video/COR320_DeanInterview.html

Source(www.justice.eku.edu)

Here's a good case for killing the death penalty

Opponents of the death penalty have reason for hope this week. Two high-profile cases are exposing the sick, barbaric folly of execution in America.

When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 92. Five nations now carry out more than 90% of the world's executions: Iran, Pakistan, Saudi Arabia, China - and the United States.

We're in pretty grim company.

But this week, America took a step toward evolving in the direction of the civilized world.

In Georgia, a man on Death Row got an extremely rare ruling from the U.S. Supreme Court.

And in Texas, a high-ranking judge is herself on trial - prosecuted for misconduct after callously refusing to hear the eleventh-hour appeal of a prisoner who was about to be executed.

The latest development in the Georgia case of Troy Anthony Davis is awe-inspiring.

For the first time in 50 years, the justices ordered a federal court to reopen a state murder case - even after a long line of appeals - and hear newly discovered evidence that might exonerate Davis.

As I've written in columns since 2007, the evidence of Davis' innocence is overwhelming. He was convicted in 1991 of the point-blank shooting of a Savannah police officer in a case with scant evidence: There was no murder weapon found, no confession, no fingerprints or other physical evidence.

Davis was sent to Death Row on the strength of nine witnesses. Seven have since recanted in sworn statements, with many claiming police coercion. An eighth witness first told cops he didn't know who the killer was, then "remembered" it was Davis two years later.

And the ninth witness, who originally pointed the finger at Davis, may be the real killer. Three new witnesses now say he was the shooter. (Details about the case are at troyanthonydavis.org.)

It took marches, rallies, media coverage and an active international movement and appeals from well-known people - including former FBI Director Williams Sessions, ex-Rep. Bob Barr (R-Ga.), Desmond Tutu and Pope Benedict - to get the high court to act.

The Supreme Court ruling signals that actual innocence counts for something in a land where so many scream for blood.

Another encouraging scene is unfolding in Texas, where Sharon Keller, presiding judge of the Texas Criminal Court of Appeals, yesterday took the witness stand in her own defense.

Keller has been charged with misconduct by the Texas Commission on Judicial Conduct and could be kicked off the bench for her actions on the night in 2007 that the state executed Michael Wayne Richard, a rapist and murderer.

On the day Richard was scheduled to be killed, the U.S. Supreme Court ordered a halt to executions in Kentucky based on a claim that lethal injections might be painful and therefore an unconstitutionally cruel form of punishment.

Richard's lawyers, frantically attempting to stay his execution based on the ruling in the Kentucky case, called Keller's aides shortly before the court's closing time, begging them to keep the court open for 15 to 30 minutes - long enough to allow papers to be filed.

At 4:45 p.m., the request was passed to Keller, who presides over the very last stop for criminal defendants in the Lone Star State.

"We close at 5," she said. Richard was executed at 8:23 that evening. And on the stand yesterday, Keller said that, if faced with the same situation, she'd slam shut the doors of the courthouse again.

That stiff-necked indifference to fairness and justice make Keller - "Killer Keller" to her critics - a poster child, along with Davis, for why we must end the death penalty.

Source(www.nydailynews.com)

Executing John Marek for Senate

When I was looking for coverage of John Marek’s execution yet to see if there were any complications with the lethal injection, I ran across one of the more disgusting news stories I have ever seen.

Governor Charlie Crist, who is running for U.S. Senate against arch-conservative and hero of the far right Fmr. House Speaker Marco Rubio, allowed the AP into his office so we can all get a first hand look at what goes on in the 48 minutes leading up to an execution. Read it and gag:

Gov. Charlie Crist silently held two framed photos of Adela Marie Simmons as a voice came over his speaker phone Wednesday evening, telling him the next in a series of eight syringes was being injected into the arm of the man who killed her.Crist’s office was silent except the whir of the air conditioner as his chief of staff and three members of his legal team sat and listened with him for each update in the execution of John Richard Marek. After the last syringe was injected, the voice said, “Team leaders have a flatline” and a few seconds later, “The doctor has confirmed he is deceased. Time of death 6:33.”

The article goes on to detail, minute by minute, the process of finding out whether the appeals have all been denied and the gruesome intricacies of the actual execution.

I am imagining the moment when a young, intrepid PR person in the Executive Office of the Governor conceived this half-baked idea over a martini at Cafe Cabernet. When selling it to the Governor, they likely told him that this will appease the victim’s rights crowd, appear transparent, show the electorate some intrigue and suspense since they enjoy those cop dramas so much, and, most importantly, demonstrate to the hard right, the folks he needs to win the Senate primary, that he is tough enough to kill someone. But this really just fell flat, not just for folks who oppose the death penalty but likely for the majority of the electorate who already sees this Governor as an unprincipled politician who puts political expediency ahead of every thing else and, this case, common sense.

No one really thinks for a second that Charlie Crist or anyone in government gives a hoot about Adela Simmons or her family. Her pictures are nothing more than props in a movie scene where the Governor and his staff are the main characters and the AP is behind the camera yelling “ACTION!” His comments about her being a “beautiful lady” appear completely contrived. Would they be trying to get mileage off a photo opportunity if the victim was a busted, cracked out prostitute, yet heinously murdered? Well, you know the answer to that one.

There is no doubt that the death penalty is divisive issue and that no matter what a governor does, a subset of the electorate will always feel aggrieved by the decision whether or not to execute a capital inmate. But any sane person would recognize that this kind of macabre, kabuki theater unnecessarily politicizes and trivializes what is likely the most serious act a governor partakes in and, frankly, is beneath any governor, including Charlie Crist.

Source(floridainnocence.org)

Scalia's Catholic Betrayal

The Supreme Court justice’s shocking remarks about capital punishment are not just a distortion of the Constitution, says Alan Dershowitz, they’re also an outrage against his church.

I never thought I would live to see the day when a justice of the Supreme Court would publish the following words:

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday. Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

• Paul Campos: Scalia's Death Row Lunacy It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.

Unlike President Kennedy, who pledged to place his obligation to the Constitution above his commitment to his church, Scalia has insisted that in his view, “The choice for the judge who believes the death penalty to be immoral [according to the teachings of the Catholic Church] is resignation.” He put his point in “blunt terms”: “I could not take part in that process [of authorizing an execution] if I believed what was being done to be immoral.” He continued: “It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic—and being unable to jump out of my skin—I cannot discuss that issue without reference to Christian tradition and the church’s Magisterium.”

Surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution.

After reviewing the teachings of the church, he concluded that there is no conflict between his judicial role in affirming death-penalty sentences and the strict teachings of the Catholic Church, which counsel against the use of capital punishment but permit this extreme sanction in extraordinary cases, especially when there is no reasonable alternative. This is the way he put it:

“So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for governor had to promise commutation of all death sentences (most of them would never reach the governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.”

But whatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?

Source(www.thedailybeast.com)