Is this truly an innocent executed

May 3, 2006

Faulty Testimony Sent 2 to Death Row, Panel Finds

By RALPH BLUMENTHAL

HOUSTON, May 2 — Faulty evidence masquerading as science sent two men to death row for arson in Texas and led to the execution of one of them, a panel of private fire investigators concluded in a report released Tuesday in Austin.

The report, prepared for the Innocence Project, a legal clinic dedicated to overturning wrongful convictions, was presented to a new state panel, the Texas Forensic Science Commission, created by the Legislature last year to oversee the integrity of crime laboratories.

Barry C. Scheck, a co-director of the Innocence Project, said the report offered "important evidence of serious scientific negligence or misconduct in the investigations, reports and testimony of Texas state fire marshals" and called into question not just the two cases but also many others based on similar arson analyses.

The nine-member forensic panel, late to start up and as yet unfinanced, "will review it and investigate," said its chairwoman, Debbie Lynn Benningfield, a fingerprint expert and retired deputy administrator of the Houston Police Department's latent laboratory section.

The report examined prosecution arson testimony in the trials of two men: Ernest R. Willis, convicted of killing two women in a house fire in 1986 in Iraan, and Cameron T. Willingham, convicted of burning his home in Corsicana in 1992, killing his three young daughters.

Mr. Willingham was executed by lethal injection on Feb. 17, 2004, after Gov. Rick Perry rejected a plea for a last-minute stay, once the courts and the State Board of Pardons and Paroles had declined to intervene.

Mr. Willis was exonerated and pardoned on Oct. 6, 2004, and collected almost $430,000 for 17 years of wrongful imprisonment.

The report says that prosecution witnesses in both cases interpreted fire indicators like cracked glass and burn marks as evidence that the fires had been set, when more up-to-date technology shows that the indicators could just as well have signified an accidental fire. In one case, the signs were accepted as proof of guilt, the report said; in the other, they were discarded as misleading.

"These two outcomes are mutually exclusive," Mr. Scheck said. "Willis cannot be found 'actually innocent' and Willingham executed based on the same scientific evidence."

Mr. Willingham's stepmother, Eugenia Willingham, who traveled to Austin from Ardmore, Okla., to attend a news conference about the report, said, "I've known it all along," adding, "I wish it could have happened before he was executed."

To analyze the evidence, the Innocence Project commissioned five unpaid experts: Douglas J. Carpenter of Combustion Science and Engineering in Columbia, Md.; Daniel L. Churchward of Kodiak Fire and Safety Consulting in Fort Wayne, Ind.; John J. Lentini of Applied Technical Services in Marietta, Ga.; Michael A. McKenzie of the law firm Cozen O'Connor in Atlanta; and David M. Smith of Associated Fire Consultants in Tucson.

In the Willingham trial, the committee found, a deputy state fire marshal, Manuel Vasquez, erred in tracing the blaze to an accelerant. The committee discredited his finding of arson. "Each and every one of the 'indicators' listed by Mr. Vasquez means absolutely nothing," the report said.

A Corsicana assistant fire chief, Douglas Fogg, "seemed to harbor many of the same misconceptions held by Mr. Vasquez," the report went on. It concluded that the fire had been "grossly misinterpreted." Mr. Fogg did not respond to a message left on his answering machine. Mr. Vasquez is dead.

Calls to offices in the Texas Fire/Arson Investigation division of the Texas Department of Insurance were not returned Tuesday.

Other Texas arson investigators and a retired agent of the Federal Bureau of Investigation testified that the fire charged to Mr. Willis was also arson, the report said. One prosecution witness said fires were rarely caused by accidentally dropped cigarettes; in fact, cigarettes are the leading cause of fire deaths, the report said.

Many arson investigators were self-taught and "inept," the report said, adding: "There is no crime other than homicide by arson for which a person can be sent to death row based on the unsupported opinion of someone who received all his training 'on the job.' "

Texas leads the nation in inmates serving time for arson, the report said: 666 as of 2002, the latest year for which statistics are available.

Kathy Walt, a spokeswoman for Governor Perry, said the forensic science commission, to which Mr. Perry names four members, was the right body "to help the criminal justice system improve by establishing appropriate standards for labs and investigations."

• Ms. Walt said that minutes before Mr. Willingham's execution, the governor was faxed an earlier report by an arson specialist, Gerald L. Hurst, disputing the prosecution's arson testimony, but that Mr. Perry had no way of evaluating it after the courts and pardons board had turned down the final appeals.

Copyright 2006 The New York Times Company