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With Texas' criminal justice system the subject of intense scrutiny for a crime lab scandal and a series of wrongful convictions, a state Senate committee heard testimony Tuesday about the possibility that Texas had experienced the ultimate criminal justice nightmare: the execution of an innocent person.
Fourteen months after Cameron Todd Willingham was executed in the nation's busiest death chamber, a renowned arson expert and Willingham's lawyer told the Senate Criminal Justice Committee that they believed Willingham might have been innocent but found nobody willing to listen to their claim in the days before the execution in February 2004.
"This was a frustrating case, and it was frustrating because it appeared that we could not get anybody to listen," said attorney Walter Reaves, who represented Willingham.
"To say that this case was thoroughly reviewed," Reaves added, "I have my doubts."
The execution of Willingham, convicted of the December 1991 arson fire that killed his three young daughters, was a focus of a hearing into a proposed innocence commission.
Governor's committee
Texas Gov. Rick Perry has, by executive order, set up his own committee. But critics, including state Sen. Rodney Ellis, a longtime advocate of criminal justice reform in Texas, and Barry Scheck, a co-founder of the New York-based Innocence Project, told the senators that to be effective the governor's panel needed to subpoena sworn testimony, obtain documents and seek forensic testing. Ellis, a Houston Democrat, has sponsored legislation to beef up the power of Perry's panel.
"Without subpoena power and the ability to order testing, I don't see how the committee can get to the bottom of these cases," Scheck said after testifying. "I haven't heard of a committee that didn't want all of those things. If you want to find out the truth, you have to have the mechanisms to do it."
A Tribune investigation of the Willingham case last December showed that he was prosecuted and convicted based primarily on arson theories that have since been repudiated by scientific advances--a fact backed up by testimony Tuesday by one of those experts, Gerald Hurst.
According to Hurst and three other fire experts who reviewed evidence in the case at the Tribune's request, the original investigation that concluded the fire was arson was flawed, relying on theories no longer considered valid. It is even possible the fatal fire at the Willingham home in Corsicana, a small town about an hour south of Dallas, was accidental, according to the experts.
Nonetheless, before Willingham died by lethal injection on Feb. 17, 2004, Texas judges and Perry turned aside a report from Hurst in which he questioned the arson evidence and suggested the fire was an accident.
"The state," Hurst testified Tuesday, "needs to take an interest in these matters."
Willingham maintained his innocence until the end. Strapped to a gurney in the death chamber last year, an angry Willingham said: "I am an innocent man, convicted of a crime I did not commit."
The scientific advances that Hurst and the other experts cited in the Willingham case played a role in the exoneration last year of another Texas Death Row inmate, Ernest Willis. Hurst told the Senate committee that the two fires were identical, and that an investigation is needed to determine why Willingham died and Willis lived.
Many prosecutors oppose expanding the power of Perry's committee, called the Criminal Justice Advisory Council. Barry Macha, the district attorney in Wichita County, testified legislators should first give the governor's panel a chance to work as designed.
But that drew a skeptical response from the committee chairman, state Sen. John Whitmire.
Bush role in 2000 case
"The problem is, they're appointed by the governor," Whitmire, also a Democrat from Houston, said of the council's members. "I would almost give them subpoena power and the first time they abuse it, we'll all come back."
Scheck also pointed to the case of Claude Jones, executed in December 2000 for the murder of Allen Hilzendager, who was shot and killed in a 1989 liquor store robbery. In that case, Scheck said, counsel for then-Gov. George W. Bush prepared a recommendation for Bush that did not mention that Jones' request for a 30-day stay of execution was to allow DNA tests to be done on a hair found at the scene. Bush denied the request for a stay.
Last year, the Tribune asked to see the recommendation in the Willingham case to try to determine whether Perry was informed of Hurst's last-minute analysis. But the Tribune's request was rejected by state officials who said the documents are considered confidential.
Scheck told the Senate committee he believed the hair in the Jones case was still in evidence and that an innocence commission with broad powers could seek to test the hair to determine if Jones was guilty. Without that ability, Scheck testified, the commission "would be hampered or powerless in its ability to get to the bottom of this very important case."
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