GOLDSTEIN, GOLDSTEIN & HJLLEY Gerald H. Goldstein (SBOT: 08101000 ) Cynthia E. Orr (SBOT: 15313350) Goldstein, Goldstein and Hilley

310 S, St. Mary's Street

29th Floor Tow(~r Life Building San Antonio, Texas 78205

(210) 852-285H : (H66) 6K2-9602 (210) 226··8]67 fax


Mark White (SHOT: 21318000) (713) 906-6848

Barry Scheck (SBONY: NY·1634765) The Innocence Project

100 Fifth Avenue, 3rd Floor New York, NY 1 nOll

(212) 364-5391 (office) (212) 364~5341 (fax)


§ § § § § § § § §






REPUTATION UNDER THE TEXAS CONSTITUTION i:(;~d in The Dlstr)ct Court Tt:qV~5 C::cuntv~ T':c;(ns


Eugenia Willingham and Patricia Willingham Cox ("Petitioners"), surviving

relatives of Cameron Todd Wi1lingham, by and through counsel, ask this Court to request the

Presiding Judge of the appropriate Administrative Judicial Distric: to appoint a district judge to

commence a Court of Inquiry under Chapter 52 of the Texas Code of Criminal Procedure. In

support, they show:

I ntrod uction

Cameron Todd Willingham was convicted of murder and executed. Yet there is

no credible evidence that the crime for which he was put to death even took place-s-much less

that Mr. Willingham was guilty of it.

The key witnesses against him were two Texas fire officials, who testified that

Mr. Willingham deliberately set fire to his home to murder his three daughters, and a jailhouse

snitch. The snitch's testimony about a purported jailhouse confession was facially incredible,

and contradicted by the forensic evidence, so the prosecution hinged on the fire officials'

testimony. Modem science conclusively demonstrates that the testimony of the fire officials that


the fire was arson was based on completely unsupportable methodologies and that, in fact, there is no basis to conclude that any arson occurred. The flawed arson testimony from these officials was further exacerbated by misleading testimony about the nature of arson investigations, and improper opinion testimony as to Mr. Willingham's truthfulness and intent. But for this flawed testimony, Mr. Willingham would not have received a guilty verdict and a lethal injection.

As Mr. Wil1ingham waited on death row, a well-respected arson expert analyzed the evidence and testimony at trial, and wrote a report debunking the case against

Mr. Willingham. That report was delivered to the Governor's Office so that Mr. Willingham's execution could be stopped. It was also delivered to the State's prosecutors and the courts. But they did not act, and Mr. Willingham was put to death.

Leading arson experts from around the country have reviewed the Willingham case, concluding that there was no reliable scientific evidence that any crime had been committed. But despite overwhelming scientific evidence, state officials have continued to demonize Mr. Willingham and defend the arson evidence on which he and others have been convicted .


..... ~

This petition requests that this Court convene a Court of Inquiry, pursuant to Texas Code of Criminal Procedure Article 52.01(a), to investigate whether offenses against the laws of Texas have been committed, and issue a declaration that Mr. Willingham was wrongfully convicted and that otherwise repairs the injury done to his reputation, as provided by Article 1, Section 13 of the Texas Constitution and Section 71.021(a) of the Texas Civil Practice and Remedies Code .

This proposed inquiry has a distinctly different purpose from the proceedings taking place before the Texas Forensic Science Commission. The Forensic Science Commission



has made clear that its purpose is not to issue a declaration as to whether or not Cameron Todd

Willingham was wrongly convicted, nor will it formally consider whether there is probable cause

to believe that Texas laws have been violated. The task of the Forensic Science Commission is,

instead, to "investigate ... any allegation of professional negligence or misconduct that would

substantially affect the integrity of the results of a forensic analysis conducted by an accredited

laboratory, facility, or entity." Tex. Code Crim. Proc. Ann. art. 3~.01 § 4(a)(3) (Vernon 2005).


Authority To Convene A Court Of Inquiry

Article 52.01 of the Texas Code of Criminal Procedure authorizes this Court to

commence a Court of Inquiry when it "has probable cause to believe that an offense has been

committed against the laws of this state." Tex. Code Crim. Proc. Ann. art. 52.01(a) (Vernon

2006). A Court of Inquiry is an appropriate forum for investigating cases of wide public

interest-such at this one-whether or not a criminal offense has been committed. See In re

McClelland, 260 F. Supp. 182, 184 (S.D. Tex. 1966) ("history shows that the Court of Inquiry

procedure has been availed of in cases of wide public interest, as when the conduct of some

public agency or official is called in question, and irrespective of the question of criminality").

There is ample ground to commence a Court ofInquiry in this case. First, there is

probable cause that officials of the State committed the offense of official oppression, Tex. Penal

Code Section 39.03(a)(2), I by failing to adequately consider prior to Mr. Willingham's execution

the evidence that he was convicted based on discredited science, by refusing to acknowledge at

all times since Mr. Willingham's execution that there is no credible evidence of arson, and by

endeavoring to prevent the truth from emerging following Mr. Willingham's execution, all as

I The Penal Code provides: "A public servant acting under color cf his office or employment commits an offense [of official oppression] ifhe: ... (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity, knowing his conduct is unlawful." Tex. Pen. Code § 39.03(a)(2) (Vernon 2003).


further described herein. As a result, state officials have intentionally denied or impeded

Mr. Willingham's and his survivors' right to a remedy for injury to his reputation under Article

1, Section 13 of the Texas Constitution ("All courts shall be open, and every person for an injury

done him, in his lands, good, person or reputation, shall have remedy by due course of law") and

under Section 71.021(a) of the Texas Civil Practice and Remedies Code ("A cause of action for

personal injury to the health, reputation, or person of an injured person does not abate because of

the death of the injured person .... "), Tex. Civ. Prac. & Rem. Code Ann. § 71.021(a) (Vernon

2008). (Emphases added.)

Second, regardless of whether the crime of official oppression was committed,

there can be no doubt that the conduct of State officials, confronted with the deficiencies of the

scientific evidence on which Mr. Willingham was convicted, was questionable at best and clearly

a matter of public interest. Commencement of the Court of Inquiry is appropriate on these

grounds alone. See In re McClelland, 260 F. Supp. at 184.

Mr. Willingbam's case, though tragic, is not unique, Rather, it exemplifies the

systemic flaws in Texas's clemency process and habeas procedures that it is proper for the Court

of Inquiry to investigate. The Supreme Court in Herrera v, Collins described the clemency

process as the "'fail safe' in our criminal justice system." 506 U.S. 390,415 (1993). The failure

ofthat fail-safe to work is a matter of wide public interest, as is the question of whether the

State's habeas procedures are denying prisoners their constitutional right to a hearing on claims

of innocence. See Graham v, Texas Bd. of Pardons & Paroles, 913 S.W.2d 745, 751 (Tex. Ct.

App. 1996) (holding that "due courts of law provision in the Texas constitution guarantees

[death-row prisoner] the right to a hearing on his claim of actual innocence.")


Petitioners expect to show that the institutions and procedures designed to ensure

that capital defendants are not executed without adequate proof of guilt failed catastrophically in

Mr. Willingham's case:




~ Fire officials gave expert testimony that was scientifically invalid and, in the case of one official, patently improper;

The State Fire Marshal's Office failed to alert anyone that modem fire science had disproved prior methods and failed to correct the discredited testimony underlying Mr. Willingham's conviction and death sentence;

Officials responsible for the clemency process ignored key evidence demonstrating the absence of valid proof that any arson had occurred;

Prosecutors reflexively opposed state habeas relief presenting new evidence, without even attempting to grapple with whether the arson science underlying Mr. Willingham's conviction was invalid;

The standards for judicial review of new evidence of innocence are unreasonably high and, in this case, prevented consideration of clear scientific evidence that Mr. Willingham was wrongly convicted;

Government officials have tried to silence a State commission looking into the Willingham case and the validity of the underlying arson evidence;


Government officials have continued to depict Mr. Willingham as a "monster" and child-murderer rather than admit he was executed based on invalid scientific evidence.

On August 20, 2010, the current State Fire Marshal represented to the State

commission looking into the Willingham case that his office stands behind the original

investigator's report and conclusions, and that the principles used by the State Fire Marshal's

Office in the Willingham case "can be linked" to standards promulgated by the National Fire

Protection Association, specifically NFPA 921. The failure of the State Fire Marshal's Office to

acknowledge the flaws in its prior conclusions, and its affirmative efforts to suggest that those

conclusions were appropriate, contravene its statutory and professional obligations to accurately

report all evidence and relevant information relating to its arson investigations. Moreover,


particularly given prior efforts made by Government officials to derail a State Commission's

investigation, there is a substantial question as to whether the State Fire Marshal's Office was

improperly influenced to make the statements that it did.

Accordingly, Petitioners assert that it is proper to convene a Court of Inquiry in

this case. See also Opinion and Order of the Court, In re A Court of Inquiry, No. D I-DC-08-

100-051 (Apr. 7,2009), slip. op. at I, 13-14 (recognizing right to seek a Court ofInquiry and

ordering exoneration of Timothy Cole under Article 1, Section 13 of the Texas Constitution


following demonstrably wrongful conviction).

II. There Is No Credible Proof That Any Arson Murder Took Place1:


A Tragic Accident

In late 1991, Mr. Willingham's house in Corsicana, Texas caught fire. He awoke

to a room ful1 of thick smoke and the sound of his three-year-old daughter, Amber, shouting,

"Daddy. Daddy!"

According to the first eyewitnesses, there was smoke coming from the open front

door of the house, the windows were intact, and no fire could be seen from outside the home?

Eyewitnesses saw Mr. Willingham standing on the porch in front of his house and shouting, "My

babies are burning up!" Along with three-year-old Amber, his one-year-old twins, Kameron and

Karman, were trapped inside.

2 Except as otherwise noted, the recitation of facts below is drawn from reports and interview statements prepared by the Corsicana police and State Fire Marshal's Office ("SFMO"), other interviews, media accounts, and the analysis of an independent expert for the Texas Forensic Science Commission (the "Commission"), which is investigating the Willingham case, as described further below.

3 See Ex. 1 (Craig L. Beyler, Analysis of the Fire Investigation Methods and Procedures Used in the Criminal Arson Cases against Ernest Ray Willis and Cameron Todd Willingham ("Beyler Report")) at 36; see also, e.g., Trial Transcript dated Aug. 18, 1992 ("Tr., part 1 "), at 54: 14-

55: 17, 72: 17-76:2. Documents cited herein as "Ex. "refer to exhibits submitted herewith.


Mr. Willingham told a neighbor, Diane Barbe, to call the Fire Department."

Mr. Wi11ingham then found a stick and broke a window to the children's bedroom; the window

promptly filled with flames. He broke another window, which was then also engulfed in flames.

Ms. Barbe later told investigators she could feel intense heat coming from the

house, shortly before the five windows of the children's bedroom exploded and more flames

blew out. (See Tr., part 1, at 59:24-60:12; see also Statement of Mary Barbe to Fire Marshal

Vazquez, at 2.) Soon the first firemen arrived. Mr. Willingham shouted that his children were in

their bedroom, where the flames were thickest. One of the firemen held Mr. Willingham back

from the fire. More firemen arrived, and attempted a rescue.

A police chaplain, George Monaghan, led Mr. Willingham away from the fire and

tried to calm him down. Mr. Willingham told the chaplain that Amber tried to wake him up and

tell him about the fire. He told the chaplain, "I couldn't get my babies out." Mr. Willingham

had singed hair on his head, eyelids, and chest (he was wearing only pants), and a two inch burn injury to his right shoulder' His wrists and hands were blackened with smoke.

When a fireman carrying Amber emerged from the house. Mr. Wil1ingham ran to

her, then veered towards the: children's room. Two men forcibly restrained him. One fireman

told investigators that it would have been "crazy" to try to enter the house. Mr. Willingham's


oldest daughter was taken to the hospital, where she died from smoke inhalation. His one-year-

old twins were pronounced dead at the scene.

4 Tr., part I, at 76:25-77:12.

5 See Ex. 1 (Bey1er Report) at 36; see also Ex. 2 (Navarro Regional Hospital Report, Short Stay Report) at 1.



The Authorities Investigate

Douglas Fogg, Assistant Fire Chief in Corsicana, conducted the initial inspection


of the fire scene on December 24, 1991, the day after the fire. (A eopy of Fogg's report is attached as Exhibit 3l The contents of the children's bedroom had already been removed and

were piled outside. On December 26th, the floors ofthe home were again cleaned to permit

further examination of the floors and burn patterns. Four days after the fire, an investigator from

the State Fire Marshal's Office, Manuel Vasquez, began his investigation, (A copy of Fire

Marshal Vasquez's report is attached as Exhibit 4.)

The investigators' reports described the damage and observations made at the

scene. A diagram of the scene included in the Fire Marshal's report shows the locations of fire

damage. (Ex. 4 at 14.) There was severe fire damage in the northeast bedroom where the

children slept. The fire damage indicated that flames had extended from all windows of the

children's room. There was also severe damage in the hallway outside the children's bedroom

and out the front door. The front porch, which abutted both the children's bedroom and the front

door also was severely damaged. The rear portions of the hallway, the living room, and the

master bedroom had heat and smoke damage. The kitchen and rear bedroom had smoke damage.

Both the children's bedroom and the front of the hallway showed that those areas

. were subject to a fully involved fire, with bum damage over the full height of the spaces. The

front door of the home was fully consumed by the fire and the front screen door frame was fully

consumed at the top and charred at the base. There was a burn pattern underneath the aluminum


threshold of the front door, which investigators took as an indication that a liquid accelerant had

6 Exhibit 3 is the copy of the Fogg report that the SFMO provided to the Innocence Project in response to a request for the file related to the Willingham fire. The copy provided by the SFMO was missing page 5.



flowed underneath and burned. Burn patterns on the floor at the front of the hallway were likewise seen as an indication that a liquid accelerant had been poured there. Some floor tiles in the front hallway were fully consumed and the wood below the tiles was damaged. The floor damage and a V pattern in the hall were deemed to indicate an area of origin. The investigators considered a space heater in the rear of the hall as being damaged by the fire, but not as its cause.

The floor of the children's bedroom had damage patterns that were taken to be indicators of a liquid accelerant pour in that area as well. That damage was most extensive under a bed and the two cribs. The electrical wiring in that bedroom was examined, but not considered the cause of the fire. Another space heater in the children's room was likewise not considered the cause of the fire.

The porch walls were damaged from floor to ceiling. Because the damage began at floor level rather than from the windows upward, Fire Marshal Vasquez considered it to be inconsistent with normal fire and an indicator of arson. Fractured glass (called "crazed glass") on the front porch side of the home was taken as an indicator that the fire burned fast and hot, which was deemed another indicator of arson. Brown stains on the porch were taken as indicators of a liquid accelerant burning on the porch. A damaged container of charcoal-lighter fluid was found on the porch. A sample of wood debris from the base ofthe front door tested positive for "mineral spirits," which can be found in charcoal-lighter fluid.

Fire Marshal Vasquez concluded that the fire had multiple origins. He concluded that the fire was incendiary and traveled from the children's bedroom into the hall and out onto the porch. Assistant Fire Chief Fogg likewise concluded that the fire was started at floor level to block the exit path from the children's bedroom.

. ·1~



The Authorities Question and Arrest Mr. Wmin1~ham

On December 31 st, the authorities brought Mr. Willingham in for questioning.

Mr. Willingham told investigators that his wife had left the house around 9 a.m., and that he then

went back to bed. Mr. Willingham recounted being awakened to a room full of smoke upon

hearing his eldest daughter's cries, and shouting for her to get out ofthe house. He recalled that

the air smelled like burning wires and that he heard sockets and light switches popping.

The investigators asked him ifhe had any idea how the fire had started.

Mr. Willingham said he was not sure, and speculated that it might have been something

electrical. Mr. Willingham and his wife used three space heaters to keep the house warm, and

one was in the children's bedroom. He told the investigators that Amber had been punished

previously for playing with It.

Fire Marshal Vasquez asked Mr. Willingham whether he had put shoes on before

he fled the house. Mr. Willingham said no. Fire Marshal Vasquez placed a diagram of the house

before Mr. Willingham, and asked whether he exited the house by going down the hallway and

out the front door. Mr. Willingham said yes.

From these answers, Fire Marshal Vasquez divined that Mr. Willingham was

lying, and therefore must have killed his children. If the floor to the hallway had been soaked

with a liquid accelerant and ignited, as Vasquez believed, Mr. Willingham could not have run out

ofthe house the way he described without burning his feet. Mr. Willingham's injuries from the

fire had been documented at the hospital, and his feet were uninjured. Willingham told

investigators that the floor of the hallway was not yet on fire as he fled the house.

Nonetheless, Mr. Willingham was arrested by a SWAT team two weeks after the

fire, and charged with murder. Because there were multiple victims, Mr. Willingham faced the

death penalty.



Willingham Receives Counsel And Refuses To Head Guilty To Save His Life

Mr. Willingham could not afford counsel. As a capital defendant, he was

appointed two attorneys, David Martin and Robert Dunn.

An experienced assistant district attorney, John Jackson, was assigned to

prosecute the case. Shortly before trial, Mr. Jackson offered a gui lty plea for a life sentence. If

Willingham accepted, he would not face the death penalty. Both of Mr. Willingham's attorneys

advised him to accept the offer. Mr. Willingham refused.


The Trial

The prosecution's case against Mr. Willingham centered on the testimony of

Assistant Fire Chief Fogg and Fire Marshal Vasquez. Without them, there was no scientific

evidence that the tire was arson, rather than an accident. Yet their testimony was deeply flawed,

and in the case of Fire Marshal Vasquez, patently improper. All the arson indicators presented

by both witnesses have been. thoroughly discredited by modern fire science (indeed, many were

known to be flawed at the time). Without their bogus testimony, it is inconceivable that

Mr. Willingham would have been convicted and put to death.

1. Flawed Arson Evidence

Assistant Fire Chief Fogg testified that the floor damage in the Willingham home

was consistent with liquid pour patterns. (Tr.,part 1,160:19-161:6.) He claimed to have

examined the plastic toy remains and concluded that the toys had not melted and run during the

fire to cause the patterns observed. (ld. at 163:16-24.) He told the jury that water-based (r,e.,

latex) paint is not flammable. (Jd. at 175 :21-176: 1.) He testified further that the floors were

made of carpet tiles or linoleum tiles with a plywood underlayer and tar paper above the original

oak floor. (Id. at] 62:20-163:5; 169:6-170:11.) He opined that the fire was intentionally set.

(Id. at 162:20-163:8; 180:15··19: 184:23-25.)


Assistant Fire Chief Fogg further testified that the investigators found no evidence

that the space heaters had started the fire, and found no shorting il1 bedroom wiring. (Id. at

159:3-19, 160:8-18.) No mention was made of examining any electrical appliances, the ceiling

fan in the children's bedroom, or the wiring elsewhere in the home.

Assistant Fire Chief Fogg told the jury that the damage at the front door threshold

was caused by a liquid flowing under the threshold and burning there, which he opined showed

the use of an accelerant. (/d. at 165:15-25.) He also opined that the staining of the concrete

porch was also due to a liquid accelerant, and that the fire started on the porch before burning

across the threshold and into the hallway. (Jd. at 161: 10-22; 166:7-22.) He did not consider or

explain how this could be true in light of the testimony of initial eyewitnesses who saw no fire on

the porch or at the front door. (See, e.g., id. at 55 :6-10; 57:22-25; 74: 14-75:4; 104:8-13.)

On cross examination, Assistant Fire Chief Fogg conceded that puddle patterns

can be caused by means other than a liquid accelerant, and that some clothing and plastic toys

can melt. (Jd. at ] 68: 11-21; 170: 12-16.) He conceded that the stain on the porch could have

resulted from a simple barbeque accident. (Jd. at 174:1-5.) He admitted the stain could have

resulted from the charcoal lighter fluid found in the damaged container in front of the house. (ld.

at 182:9-182:19; 184:2-8.) He acknowledged that a child with matches or a lighter could have

started the fire, and that the evidence at the scene did not eliminate this hypothesis. (!d. at

177:11-20; 185:11-18.) Yet he told the jury that his personal belief was that the fire was

intentionally set. (Jd. at 177:25-178: 10; 180: 15-19, 184:23-25.)

Fire Marshal Vasquez testified that he had investigated between 1,200 and 1,500

fires and that, "with the exception of a few, most alI of them" wen: arsons. (Tr., part 1,227:24-

228:4.) He claimed that about half of those fires resulted in deaths. (Jd. at 228:5-9.)


Based on his viewing of the floors after they were cleaned, Mr. Vasquez opined that a liquid accelerant had covered much of the floor in the children's bedroom. (Id. at 245:3- 16.) He told the jury that "the whole room here on the northeast [children's] bedroom is a point of fire origin." (1d. at 254:14-255:7.) He claimed that there were additional points of origin to the fire in the hallway and on the porch. (Jd.) He identified a V pattern on the hallway wall as an indicator of a point of origin. (Id. at 236: 15-237: 1.) He testified that the multiple points of origin were unconnected and thus indicated an intentional fire. (!d. at 255:9-11.)

Fire Marshal Vasquez testified that there were pour patterns in the hallway, and that the pouring was done with the intent to block the exit. (Id. at 250:20-251 :2.) He claimed that accelerant had been poured on the front door, and that there was liquid pooling on both sides of the door. (See id. at 251:21-252: 1.) He stated that the front door was closed during the fire.7 He told the jury that the charred baseboard along the porch meant a flammable or combustible liquid was poured in front of it, apparently rejecting the idea that heat from the door and porch ceiling flame could have ignited the entire wall. (Tr., part 1, at 251 :21-252:7.)

Fire Marshal Vasquez told the jury that the damage to the children's bedroom was not "normal," but did not explain why. (Id. at 247:18-248:9.) He later argued that he believed the temperatures were higher at floor level than at ceiling level, and that the difference was due to an accelerant. (Id. at 256::8-22.) He said that bedsprings in the children's bedroom were burned from underneath. (ld. at 240:19-241 :5.) Mr. Vasquez also told the jury that the fact that the fire was auto-ventilated (by breaking window glass) was an indicator of arson. (ld. at 255:12-19.) He testified that this behavior was "inconsistent with tire behavior" (id. at 255:18), suggesting it could not otherwise be explained.

7 Trial Transcript dated Aug. 19, 1992 ("Tr., part 2") at 34:24-35:2. 13

Based on his examination of the porch-and notwithstanding the flatly contrary

testimony of eyewitnesses--Mr. Vasquez told the jury that the fire spread into the house and not

from the house out to the porch. (Id. at 248: 14-20.) In examining the threshold, he noted a low

burn at the doorway and a melted aluminum threshold plate. (Id. at 248:20-249:16.) He told the

jury this was evidence of incendiarism, claiming that wood bums at 800 degrees Fahrenheit, and

that an accelerant was necessary to reach the 1,200 degrees Fahrenheit required to melt

aluminum. (Id. at 249:9-16.) He also claimed that crazed glass on the porch was an indicator of


a fast and hot fire due to an accelerant. (Ex. 4 (Vasquez Report) a: 4-5; see also Tr., part 1, at


Fire Marshal Vasquez told the jury that he eliminated the space heaters as a

potential cause because they were turned off, but did not explain how he knew that they were off

(Tr., part 1, at 246:20-247:3), given that he had arrived at the scene four days after the fire and

.. mi

after significant activities at the scene were completed tid. at 247:4-9).

He opined that a child could not have caused the fire based on the extent of the

pour patterns and that Mr. Willingham could not have escaped the home if a child had set the fire

because the front hallway exit path would have been engulfed in flames. (/d. at 260:23-262:5,

266:25-267: 15.)

On cross-examination, Fire Marshal Vasquez acknowledged that deep burns in

the floor could have been caused by means other than accelerants. (Tr., part 2, at 2:15-25.) He

admitted he did not know how much of the children's bedroom was carpeted. (Id. at 6:13-20.)

He acknowledged that he was unaware of the presence oflighters that had been coI1ected at the

scene, but opined that it was unlikely a two-year-old would be capable of setting the fire. (See

id. at 71:1-19.)



Fire Marshal Vasquez conceded that he had not known that a charcoal grill had been on the front porch at the time of the fire, or that it was moved away by the firemen at the scene. (ld. at 14:11-15:9.) Fire Marshal Vasquez acknowledged that debris had been removed from the scene, but that he was not present for the removal and did not know how it had been removed. (ld. at 25:14-26:n3; 33:1-5.) Fire Marshal Vasquez testified that he did not know the contents of the debris, and did not examine it. (See id. at 25:14-26:13; 62:22-63:8; 63:17-18;



Improper Expert Testimony

Fire Marshal Vasquez gave inappropriate opinion testimony, offered conclusions that were plainly beyond his expertise, and opined on matters well beyond what fire science permits any investigator to know.

Most strikingly, Fire Marshal Vasquez gave testimony about Mr. Willingham's credibility and intent that was beyond the pale for any fire investigator. In particular, the Fire Marshal was permitted to testify about Mr. Willingham's credibility as follows: "I've talked to the occupant of this house, and I let him talk and he told me a story of pure fabrication." (Tr., part I, at 258: 16-18.) He told the jury that when speaking to Mr. Willingham, "I listened to him. I never questioned him. I never asked him any questions. He just talked and talked and all he did was lie." (Id. at 260:18-20.)

Fire Marshal Vasquez even testified that he could identify Mr. Willingham as an arsonist and divine Mr. Willingham's intent from the ashes of his home:

Q. Do you have an opinion as to who started the fire? A. Yes, sir.

.. ~

Q. What is that opinion?

A. The occupant, Mr. Willingham . 15

* '" *

Q. Based upon your investigation and your examination of the scene and your conclusions, can you tell what the arsonist intended to do by setting the fire?


A. The intent was to kill the little girls.

(ld. at 268:13-17, Tr., part 2, at 54:6-11.) Such testimony was based on no evidence and was

clearly improper.

Fire Marshal Vasquez also made statements more appropriate for a fortune teller

than an arson expert. After reviewing photographic evidence of the fire scene with the jurors, he

told them, "The fire tells a story. I am just the interpreter." (Tr., part 1, at 244:8-9.) He added,

"And the fire does not lie. It tells me the truth." (ld. at 244: 11-12.) In addition, Fire Marshal

Vasquez told the jury, "The fire, itself, tells me that it's a very aggressive fire; and, therefore, the

fire was not a planned fire. It was a spur-of-the-moment fire." (Tr., part 2, at 72:14-16.) All of

this testimony improperly suggested that arson investigation is far more accurate than it actually

is. And, despite having no medical training and having never examined Mr. Willingham, Fire

Marshal Vasquez nevertheless also told the jury that Mr. Willingham's injuries were self-

inflicted. (Tr., part 1, at 262:17-22.) No arson expert was called on Mr. Willingham's behalf to

rebut the testimony of Assistant Fire Chief Fogg or Fire Marshal Vasquez.


Testimony Of Jailhouse Snitch Johnny Everett Webb Is Incredible And Is Contradicted By Science

The only other evidence of arson was the facially unbelievable testimony of

jailhouse snitch Johnny Everett Webb. Jailhouse snitches are notoriously unreliable witnesses

because they have the incentive to lie to obtain leniency or more favorable treatment while

incarcerated. A study published by the Northwestern University School of Law's Center on


Wrongful Convictions found that more than 45 percent of documented wrongful capital

convictions since 1973 were influenced by snitches.i

The testimony of the jailhouse snitch in this case was particular cause for concern.

A prisoner serving a fifteen-year sentence for robbery, Webb also had prior convictions for

forgery, theft, distributing drugs, stealing a car, and burglary. (Tr.. part 1, at 13 :20-14: 1; 18:8-

22; 22: 18-23:1; 41 :9-11.) At the time of trial, Webb was under the care of a doctor for mental

i1lness and was on medication. (/d. at 24:8-14; 25:17-25; 42:21-4:.:3.) Webb also had a long

history of alcohol and drug abuse, including crack cocaine. (/d. at 23:24-24:7,26:16-25.)

Although Webb testified he had no agreement with prosecutors for a reduced sentence in

exchange for his testimony, one of the prosecutors, John Jackson, .ater argued for parole on

Webb's behalf.9

The testimony of Webb-who had never met Mr. Willingham before prison-was

remarkable. According to Webb, Mr. Willingham denied for 30 days having caused the fire.

(Tr., part 1, at 35:2-6; 36: 19··24; 37:20-23.) Then one day, Mr. Willingham allegedly confessed

out of the blue. (/d. at 36:19-24; 37-20-23.) This confession supposedly took place in plain view

of a deputy warden a few feet away and near other inmates, over an intercom between the cell

Mr. Willingham shared with other inmates and the room outside. (Id. at 29:8-20; 30:6-8; 31 :22-

32:8; 32:15-17; 33:5-34:2.) The deputy was free to listen in on the intercom, and anyone nearby

8 Rob Warden, The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row, Center on Wrongful Convictions, Northwestern University School of Law 3, 14 (2004), available at

http://www .1 aw. northwestem. edu/wrongfu lconvi cti ons/issues/ camesandrem edies/sni tches/Snitch SystemBooklet.pdf; see also Alexandra Natapoff, Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 Golden Gate U. L. Rev. 107, 108 (2006) (describing the role of informants in wrongful convictions).

9 See Ex. 5 (David Grann, Trial by Fire, THE NEW YORKER, Sept. 7, 2009 ("Trial by Fire"» at 52 (quoting Jackson).



could have heard Webb's alleged conversation with Mr. Willingham. (Id. at 30:3-31 :24; 32: 15-

17.) Yet other than Webb's testimony, no testimony as to the alleged confession was introduced.

In addition, the substance of the supposed confession was contrary to the forensic

evidence. According to Webb, Mr. Willingham confessed to pouring lighter fluid in an X pattern

in his children's bedroom. (Id. at 46:8-15.) Yet of the many samples taken and tested for

accelerant, none ofthe samples from the children's bedroom tested positive. 10 Webb claimed

that Mr. Willingham told him that he set the fire to hide his wife's abuse of the children, and then

burned one of the children on the forehead and arm to make it look like an accident. (Id. at

17:23-18: 12; 18:17-20; 19: 1 0-15.) However, there was no medical evidence offered at trial that

any of this conduct occurred, and the autopsy reports do not suppert Webb's claims.

After supposedly hearing Mr. Willingham's startling confession, Webb took no

notes and did not tell anyone. (ld. at 34:19-20; 37:24-38:1; 39: 1-2.) Webb claims he later came

forward because it was bothering his conscience. (Id. at 20:5-10.)

Had Webb's shaky testimony been the only evidence of arson against

Mr. Willingham, it is unlikely he would have been convicted of a capital crime. I I


Mr. WiJlingham Is Convicted And Sentenced To Death

Before the trial was over, Mr. Willingham was again offered the chance to plead

guilty to avoid the death penalty. One of his attorneys, David Martin, urged Mr. Willingham's


parents to persuade him to accept the deal. He showed them photographs of the burned children.


10 See Ex. 7 (Armstrong Forensic Laboratory Report 91FR3577, Recovery & Identification of Flammable Liquids ("Lab Report"»; r-., part 1, at 194:6-195: 1; 195:7-16; 196:4-21; 197: 11-25.

II Other testimony of various neighbors concerning Mr. Willingham's demeanor (such as whether he was acting too distraught or not distraught enough) has little probative value and could not be the basis for a criminal prosecution absent scientific evidence of arson or the alleged confession to Webb.



Mr. Martin told them, "Look what your son did. You've got to talk him into pleading, or he's

going to be executed."

Petitioner Eugenia Willingham begged him to take the deal. Mr. Willingham

would not. "I am not guilty," he said. And, if accepting a plea meant admitting to killing his

children, "they may as well get the needle ready." Thereafter, Mr. Willingham was convicted

and sentenced to death.

G. Reports Of Leading Scientific Experts Demonstrate There Was No Credible Basis For Believing An Arson Occurred

Approximately two weeks before Mr. Willingham's scheduled execution, a

nationally renowned fire expert agreed to review the arson evidence in the Willingham case.

Dr. Gerald Hurst holds a Ph.D. in Chemistry from Cambridge University and has

spent nearly three decades as a fire and explosives expert. He has served repeatedly as an expert

witness in numerous arson cases. Dr. Hurst's work helped exonerate North Carolina resident

Shelia Bryan, who was wrongfully convicted of arson and sentenced to life in prison, and Texas

resident Ernest Ray WilJis. As further discussed below, Mr. Willis was exonerated and released

after spending 17 years on death row based on flawed arson evidence much like the evidence

against Mr. Willingham.

Dr. Hurst concluded that there is "nothing to suggest to any reasonable arson

investigator that this was an arson fire ... It was just a fire.,,12 He prepared a report (the "Hurst

Report") on the fire evidence in the case (attached as Exhibit 6), which was delivered to the

Governor's Office, the courts, and the State prosecutors prior to Mr. Willingham's execution.

"' ...

12 Steven Mills & Maurice Possley, Man Executed on Disproved Forensics, Fire that Killed His 3 Children Could Have Been Accidental, CHICAGO TRIBUNE, Dec. 9, 2004, at C 1.


1. The Hurst Report

Dr. Hurst concluded that the Fire Marshal's report on the Willingham fire

contained numerous "critical errors" in interpreting the evidence. [Ex. 6 (Hurst Report) at 1. J

Dr. Hurst further stated that "most of the conclusions reached by the Fire Marshal would be

considered invalid" in light of the arson science known in 2004 before Mr. Willingham's

execution. (!d.)

Dr. Hurst's report rebuts the supposed indicators of arson used to secure

Mr. Willingham's conviction. Many of these indicators were shown to be unreliable before

Mr. Willingham was convicted and executed. The National Fire Protection Association's NFPA

921, A Guide to Fire and Explosion Investigation. (,'NFPA 921 "),first published in 1992, and

discussed further below, specifically addressed many ofthese indicators.

(a) Floor Patterns

The Hurst report explains that the floor patterns and puddle configurations on

which investigators relied as evidence of the presence of an accelerant were simply not reliable.

Although it was once "fairly common practice for the investigator to cite these patterns as proof

ofthe use of an accelerant," with the release ofNFPA 921, fire investigators learned that these


patterns were not reliable indicators in fully involved compartment fires like the one at the

Willingham home. [Ex. 6 (Hurst Report) at 2-3.] As further discussed below, a fully involved

fire is one in which a room bums from floor to ceiling. 13

Dr. Hurst notes that full-scale fire testing conducted in 1992 confirmed that the

same floor patterns that in the past had been considered evidence 0 f use of an accelerant could be

IJ The transition to full room involvement after heat causes an entire room to ignite is also known as "flashover." Dr. Hurst concluded that the Willingham fire showed the hallmark of flashover when flames poured out of the windows and door. [See Ex. 6 (Hurst Report) at 3.] Dr. Hurst's use of the term "post-flashover" is synonymous with a . 'fully involved" fire.


generated without accelerant. (See id. at 3; see also John J. Lentini, The Lime Street Fire:

Another Perspective, The Fire and Arson Investigator, Sept. 1992, at 52-54.) As a result, it was "impossible to visually identify accelerant patterns" under the conditions present at the Willingham home. [Ex. 6 (Hurst Report) at 3.]


Multiple Origins


Dr. Hurst also found that investigators erred in concluding that there were multiple origins fix the fire at the Wi1lingham home. Specifically, Dr. Hurst explained that "multiple origins can only be demonstrated when two or more areas of fire are completely isolated from one another." [Ex. 6 (Hurst Report) at 3.] In the Willingham fire, "all of the bum areas were clearly contiguous" because they were joined by obvious radiation and/or conduction mechanisms. (Id.) Dr. Hurst concluded that the findings of multiple origins were "inappropriate" even in the context of the state of fire science in 1991 when the investigative reports were initially prepared. (Id.)


V Patterns

Fire Marshal Vasquez relied on the presence of V patterns to identify alleged areas of origin indicating an intentional fire that he believed was set using an accelerant.

(Tr., part 1, at 236: 16-237: 1, 238:5-14,240:3-10,254: 14-255: 11; Tr., part 2, at 74: 16-19.) Instead, as Dr. Hurst explains, "V patterns are only sometimes indicators of a point of origin of a fire and only rarely indicators of the use of a liquid accelerant." [Ex. 6 (Hurst Report) at 3.] Once a room fire is fully involved, "V patterns will form from the burning of such common items as wooden door frames, combustible objects on the floor, etc." (ld.) Thus, as with floor patterns and puddle configurations, investigators cannot rely on V patterns as indicators of fire origin when investigating fully involved fires. (See id.)


(d) Burned Wood Under Aluminum Threshold


Although both Assistant Chief Fogg and Fire Marshal Vasquez concluded that

wood under the aluminum threshold was charred due to a liquid accelerant burning at that spot,

that phenomenon is "clearly impossible." [Ex. 6 (Hurst Report) at 3.] Wood floors cannot bum

under an aluminum threshold, As Dr. Hurst explained, that would be like grease in a pan

burning under a lid. (Id.)

Instead, wood charring under a threshold "is a common occurrence" in fully

involved compartment fires. (ld. at 3-4.) The inflow of oxygen-rich air under the doorway

creates extremely high temperatures, which can melt the aluminum threshold. (See id. at 4.)

This effect was "textbook knowledge" for fire investigators no later than 2002. [See id.; see also

John D. DeHaan, KIRK'S FIRE INVESTIGATION 198-201 (5th ed. 2002).]

(e) Tiles Burned from Accelerant Underneath

The Hurst report explains that "a liquid accelerant will not burn underneath a tile

on the floor any more than it will under an aluminum threshold." [Ex, 6 (Hurst Report) at 4.)

Thus, Fire Marshal Vazquez's testimony that tiles were burned from underneath and that this

was an indicator of accelerant (Tr., part 1, at 242:24-243: IS) was incorrect. Instead, "[b ]uming

underneath a tile is caused by the tile curling" during the fire due to heat, "thereby exposing its

lower surface to the heat." [Ex. 6 (Hurst Report) at 4.] What is more, kerosene-like materials

are known to bum "only with great difficulty" even on the top surface of tile materials, and tend

.. ".


to self-extinguish, leaving unburned kerosene behind. (Jd.)

Numerous samples were taken from the children's bedroom. All tested negative

for accelerants, including kerosene. [See Ex. 7 (Lab Report); Tr., part 1, at 194:6-195:1; 195:7-

16; 196:4-21; 197:11-25.]


(0 Crazed Glass

Although Fire Marshal Vasquez pointed to the presence of crazed glass as

evidence of a liquid accelerant, Dr Hurst explained that this is simply an "Old Wives Tale."

[Ex. 6 (Hurst Report) at 4]. Crazed glass is not caused by high temperatures or rapid fires. Instead, it is caused "by the rapid chilling of hot glass" when water is used to extinguish the fire. (Jd.) Extensive field tests following an accidental fire in Oakland, California and subsequent laboratory tests have confirmed this finding, which was published in 1993. (See id.; see also John J. Lentini, Unconventional Wisdom: The Lessons of Oakland, The Fire and Arson Investigator, June 1993, at 19-20.)

(g) Brown Stains on Cement Porch

Although Fire Marshal Vasquez pointed to the presence of brown stains on the porch as evidence of an accelerant having been present, Dr. Hurst concluded that this was "baseless speculation." [Ex. 6 (Hurst Report) at 4.] Instead, the presence of an accelerant can only be established by laboratory testing. (Jd.)

(h) Positive Accelerant Analysis

Fin: Marshal James Pe10s testified that kerosene was present in a single sample of

wood from the bottom of tht:~ doorway adjacent to the cement porch. (See Tr., part I, at 197: 11- 25; see also Ex. 7 (Lab Report).] In fact, as Dr. Hurst's report notes, "[w]hat the analyst actually reported was 'mineral spirits of kerosene,' which is not the same thing as kerosene."

[Ex. 6 (Hurst Report) at 4; see also Ex. 7 (Lab Report).] Charcoal lighter fluid belongs to the same class ofliquids labeled "mineral spirits of kerosene," and a b urned container of charcoal lighter fluid was found at the scene. (Ex. 6 (Hurst Report) at 4.J Thus, "the presence of this material is an expected natural occurrence in the wake of a fire. Fluid from the can would be


dispersed and floated across the concrete" by water sprayed from fire hoses used to extinguish


the blaze. (Id. at 4.)

Although positi ve test results would be expected if an accelerant were used, 14

numerous other samples taken from the Willingham home all tested negative for accelerants,

including kerosene. [Tr., Part I, at 194:6-197:25; Ex. 7 (Lab Report).] Thus, there were no

accelerants anywhere in the house except where expected, where the charcoal lighter fluid was

found located on 'the front porch.

... ... ...

As discussed below, Dr. Hurst's report was delivered to both the Governor's

Office and officials in the judicial system before Mr. Willingham's execution, but no action was

taken on the report. At 6:20 p.m. on February 17, 2004, Willingham received a lethal injection



and was pronounced dead. Only moments before, he declared his innocence for the last time. "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." [Ex. 5 (Trial by Fire) at 63.J

2. The Arson Review Committee Report

Following a groundbreaking article by Steve Mills and Maurice Possley in The

Chicago Tribune, questioning whether the evidence of arson against Mr. Willingham was


adequate, 15 a panel of fire scientists agreed to review the evidence for the Innocence Project.

This Arson Review Committee prepared a report that systematically contradicted the arson

evidence against Mr. Willingham and another death fOW inmate, Ernest Ray Willis (whose case

is discussed below).

14 See Ex. 9 (Arson Review Committee Report) at 10.

15 See Steve Mills & Maurice Possley, Man Executed on Disproved Forensics, Fire that Killed His 3 Children Could Have Been Accidental, THE CHICAGO TRIBUNE, at C1, (Dec. 9,2004).


The Arson Review Committee was chaired by John 1. Lentini, a certified fire

investigator and chemist with more than 30 years of experience in forensic and fire

investigation.l" Mr. Lentini has investigated more than 2,000 fire scenes and has been accepted

as an expert witness more than 200 times. He has published numerous articles on fire science

and investigation in peer-reviewed publications, including The Fire and Arson Investigator and

The Journal of Forensic Sciences. Mr. Lentini is also the author cf a leading fire investigation

textbook, Scientific Protocols of Fire Investigation (CRC Press 2006). (A copy of Mr. Lentini's


CV is attached as Exhibit R) The other members of the Arson Review Committee were Douglas

J. Carpenter.l ' Daniel L. Churchward, 18 Michael McKenzie, 19 and David M. Smith.20 A copy of

the Arson Review Committee Report is attached as Exhibit 9.


16 Mr. Lentini is certified by the International Association of Arson Investigators (HIAAI") and the National Association of Fire Investigators ("NAFI"). He is also a certified Diplomate of the America Board of Criminalistics, with a specialty in fire debris analysis, Among other distinctions, Mr. Lentini is also the former chair of the lAAI Forensic Science Committee and a current member of the National Fire Protection Association ("NFPA") Technical Committee 921 on Fire Investigations.

17 Mr. Carpenter has investigated fires since 1996. He holds a degree in Mechanical Engineering from Vermont Technical College, a B.S. in Mechanical Engineering from the University of Vermont, and a Master's degree in Fire Protection Engineering from Worcester Polytechnic Institute. Mr. Carpenter is also a Certified Fire and Explosion Investigator and Vice President and Principal Engineer at Combustion Science and Engineering, Inc., an independent consulting finn in Columbia, Maryland. He has published in The Journal of Fire Protection Engineering and the Fire Safety Journal, and has been qualified as an expert in the areas of fire protection engineering and fire investigations.

18 Mr. Churchward is the President of Kodiak Enterprises, Inc., an independent consulting firm in Fort Wayne, Indiana, and a former Chairman of the NFPA. He has investigated more than 2,500 fires, and has been qualified as an expert in both state and federal courts. Mr. Churchward is a former po1ice officer, firefighter, and insurance investigator, with a B.S. in Electrical

Engineering Technology from Purdue University and has more them 35 years of experience.

19 Mr. McKenzie is an attorney at Cozen O'Connor in Atlanta, Georgia. He has coordinated fire investigations for clients since 1979, and has tried to verdict more than 30 arson cases.

Mr. McKenzie is also a member of the IAAI.

20 Mr. Smith is a certified fire investigator with more than 35 yean: of experience. He owns and manages Associated Fire Consultants, Inc., a private fire and explosion investigation firm in


The Arson Review Committee examined each of the alleged "indicators" of arson

relied upon by Assistant Fire Chief Fogg and Fire Marshal Vasquez. [See Ex. 9 (Arson Review

Committee Report) at 3.] The Arson Review Committee unanimously concluded that "each and

every one of the indicators relied upon have since been scientifically proven to be invalid."

[Id. (emphasis added).] The Arson Review Committee's analysis generally comports with

Dr. Hurst's report. Certain areas where the Arson Review Committee offered more details or

support, or offered additional opinions, are addressed below.


Floor Patterns

Like Dr. Hurst, the Arson Review Committee concluded that Fire Marshal

Vasquez erred in his interpretation of alleged floor patterns and trailers as evidence of accelerant.

(Tr., part], at 238: 15-239: I 0; Ex, 4 (Vasquez Report) at 4.] The Arson Review Committee also

noted that Fire Marshal Vasquez's testimony that "All fire goes Up .. 21 reflects a

misunderstanding of fire science. Its explanation on both issues is helpful.

When a fire occurs inside a compartment, it behaves differently than if it is

burning in the open. [Ex. 9 (Arson Review Committee Report) at 8.) As a compartment fire

bums, hot gas will form a thermal plume above the fire, which will rise to the ceiling. (Id.) As

the hot gas spreads along the ceiling and the fire continues to bum., the ceiling layer of hot gas

will grow deeper. (Jd.) Once the temperature of the ceiling layer reaches approximately 1,100 to

1,200 degrees Fahrenheit, it can ignite every exposed and easily-ignitable combustible surface in

the room, including walls, ceilings, and flooring. (Jd. at 8-9.) This ignition (sometimes called

"flashover") marks the transition between a fuel-controlled fire (which will burn based on the

Tucson, Arizona. Mr. Smith has testified more than 170 times in state and federal courts in the United States and Canada. Mr. Smith is a past President of the IAAI and has been a principal member of the NFlP A Technical Committee 921 on Fire Investigations since 1992.

21 Tr., part 1, at 232:16; see also id. at 165:19-20 (Fogg testimony).




fuel available) and a ventilation-controlled fire (which will bum based on the inflow of air into

the compartment). (Id.)

In a post- flashover, or fully developed fire, the buming of compartment surfaces

can create patterns of the type described by Mr. Vasquez as "puddle configurations" and "pour

patterns." (!d. at 8-9.) Because the walls and ceiling of the front bedroom were constructed of

gypsum wallboard, which is able to absorb a significant amount of heat before failure occurs,


these surfaces suffered less damage that the flooring materials, which were more susceptible to

damage. (Id. at 14.) To interpret this "natural fire progression as evidence of incendiarism," the

Arson Review Committee concluded, is "false and extremely misleading." (Id.) As a result, the

patterns produced simply cannot be used to distinguish between arson and an accidental fire.


(See id. at 7-15.) ~

(b) Multiple Origins

The Arson Review Committee also disagreed with Fire Marshal Vasquez's

conclusion that the fire had multiple points of origin (Tr., part 1, at 254: 14-255: 11), finding that

this conclusion "has no support." [Ex. 9 (Arson Review Committee Report) at II; see also id. at

18-19.) The Arson Review Committee explained the issue's importance:

It is generally accepted by the public that a fire having more than one origin was intentionally set, because accidental fires almost always begin in one and only one place.

(Id. at 18; see also id. at 11.) A review of the videotape of the scene reveals that Fire Marshal

Vasquez was mistaken on this critical issue, inasmuch as "all of the burned areas in this

22 The United States Fire Administration likewise has concluded that the presence offloor patterns in a post-flashover compartment fire is not a reliable indicator of the presence of an accelerant. [See Ex. 9 (Arson Review Committee Report) at 9 (citing J.H. Shanley, Report of the Us. Fire Admin. Program for the Study of Fire Patterns, FA 178, Fed. Emergency Mgmt. Admin., U.S. Fire Admin. (July 16, 1997).]



residence were contiguous." (Id. at 12.) There is a "connecting path" between each area as reflected in the three-dimensional videotape (rather than the two dimensional floor chart prepared by the State Fire Marshal's Office). (Id.)


Y Patterns


The Arson Review Committee also rejected Fire Marshal Vasquez's conclusion that V patterns on the wall indicated areas of origin. [See Ex. 4 (Vasquez Report) at 2-3;

Ex. 9 (Arson Review Committee Report) at 17.] The Committee round that V patterns are "routinely observed in compartment fires during post-fire investigationl.]" [Ex. 9 (Arson Review Committee Report) at 17; see also NFPA 921 at 52-54.] As a result, a V pattern "provides no information as to the time of ignition and thus, cannot be used as an indicator of the origin of the fire." (Ex. 9 (Arson Review Committee Report) at 17.]

(d) Burned Wood Under Aluminum Thteshold

In addition, the Arson Review Committee rejected the investigators' conclusions that damage at the front door threshold was caused by liquid flowing underneath and igniting there. [Tr., part 1, at 165:15-25 (Vasquez Testimony); 248:14-249:15 (Fogg testimonyj);

Ex. 9 (Arson Review Committee Report) at 16.] Instead, burning under the aluminum threshold is "precluded" by the absence of oxygen there. (Ex. 9 (Arson Review Committee Report) at 16.] Damage to the wood below the threshold plate results instead from heat radiated from above as air and fuel mix in the open doorway. (ld.)

Likewise, the Arson Review Committee rejected Vazquez's testimony that the melted aluminum threshold indicates an accelerant because the fin: supposedly burned "hotter" than "normal fire." (Tr., part 1, at 249: 15-16.) In fact, the claim that an accelerated fire bums at a higher temperature than an unaccelerated fire is "simply incorrect." [Ex. 9 (Arson Review Committee Report) at 11.] A well-ventilated gasoline fire produces flame temperatures that are


virtually the same as a well-ventilated wood fire. (Id.) Unaccelerated compartment fires can

reach average temperatures between 1,000 and 2,000 degrees Fahrenheit, sufficient to melt

aluminum. (Id.)

(e) Crazed Glass

Contrary to Fire Marshal Vasquez's conclusion.v' crazed glass "is not caused by

rapid heating and cannot be caused by rapid heating. It is always caused by rapid cooling."

[Ex. 9 (Arson Review Committee Report) at 18 (emphasis in original).]


Brown Rings On Cement Porch

The Arson Review Committee rejected Fire Marshal Vasquez's testimony that an

area of brown discoloration on the porch indicated a burning accelerant/" [Ex. 9 (Arson Review

Committee Report) at 18.] How concrete behaves during fires, including color development, has

been extensively studied. (l'd.) "There is no scientific basis" for the claim that brown

discoloration indicates the presence of accelerant. (Id.) Fire Marshal Vasquez's testimony on

this score thus had "absolutely no basis in fact." (Id.)

(g) Auto Ventilation

Fire Marshal Vasquez also erred when he identified auto-ventilation as an

indicator ofincencliarism. (Tr., part 1, at 255:12-19.) As the Arson Review Committee

explained, auto-ventilation is a term of art used by fire fighters to describe ventilation paths not

created by the actions of those fighting the fire, such as windows breaking during a fire.

[Ex. 9 (Arson Review Committee Report) at 12.] Extensive testing has demonstrated that glass

exposed to fire naturally breaks due to the temperature differential between the exposed part of

the glass and the portions protected by the window frame. (Id. at 12-13.) What is more,

23 Ex. 4 (Vasquez Report) at 4; Tr., part 1, at 249:9-16. 24 Tr., part I, at 248:24-249: 7; 255: 12-256:2.


Mr. Willingham himself unwittingly created most ofthe ventilation paths by running out the

front door, and later breaking two front windows using a pool cue, in an attempt to rescue his

children. (Id. at 13.) In any event, auto-ventilating, even when it occurs, is consistent with

unaccelerated compartment fires. (Id. at 12.)


Low Bum

Although Fire Marshal Vasquez identified low burning as an indicator of arson,zs

low bum is to be expected here, where there was a fully involved compartment fire.

[Ex. 9 (Arson Review Committee Report) at 13.] The presence of a low bum means "nothing"

with respect to the origin and cause of the fire, and "absolutely doles] not support any hypothesis

that the fire had been accele:rated by liquid fuels." (Id.)


Springs Burnt From Underneath

Other misconceptions addressed by the Arson Review Committee include Fire

Marshal Vasquez's claim that bedsprings burnt from underneath and that burnt floors underneath

the bed indicated the use of accelerant. [Tr., part 1, at 239:1-6; 240:19-241:5; Ex. 9 (Arson

Review Committee Report) at 10.} Many beds and other furniture items contain materials, such



as polyurethane foam, that can melt, drip, and form pools on surfaces under furniture.

[Ex. 9 (Arson Review Committee Report) at 10.] Thus, bum patterns under beds and damaged

springs may be part of the natural progression ofa fully involved compartment fire. (See id.)

Only laboratory testing for an ignitable liquid in debris samples can credibly identify fire caused

by an ignitable liquid in a fully involved compartment fire. (See itl.) As described above, the lab

results for accelerants in samples taken from the children's bedroom were all negative.

* * *

25 r-, part 1, at 243:16-244:6, 248:23-249:6, 252:16-252:22.


In sum, the Arson Review Committee found that "[e ]ach and everyone of the

'indicators' listed by [Fire Marshal] Vasquez means absolutely nothing and, in fact, is expected

in the context of a fire that has achieved full room involvement, as this fire clearly did."


[Ex. 9 (Arson Review Committee Report) at 13 (emphasis omittedj.j"

. ~

3 .

The Beyler Report

In 2005, in response to reports of irregularities in the Houston crime lab, the State

of Texas created the Texas Forensic Science Commission (the "Commission"). The

Commission is tasked with investigating alleged misconduct or professional negligence that

would affect the integrity of forensic results. Tex. Code Crim. Proc. Ann. art. 38.01 § 4(a)(3) .

. ~

Four of the Commission's nine members are appointed by the Governor, three by the Lieutenant

Governor, and two by the Attorney General. Id. at § 3(a)(3).

In response to a complaint filed by the Innocence Project based on the Arson


Review Committee's report, the Commission undertook an investigation into the scientific

evidence in the Willingham case and the Willis case, which is discussed below. The

Commission interviewed arson experts and retained a renowned arson expert, Dr. Craig L.

Beyler, to investigate and provide a report to the Commission.

Dr. Beyler has a B.S. in Civil Engineering and an M.S. in Mechanical

Engineering from Cornell University, a B.S. in Fire Protection Engineering from the University

of Maryland, an M.Sc. in Fire Safety Engineering from the University of Edinburgh, and a Ph.D.

26 The Arson Review Committee also examined Fire Marshal Vasquez's testimony that most of the 1,200 to 1,500 fires he investigated were arson, and that about halfofthose cases resulted in death. (Tr., part 1, at 249:9-15.) In fact, on average over a 25-year period, only about half of the fires investigated by the State Fire Marshal's Office were determined to be arson. [Ex. 9 (Arson Review Committee Report) at 5-6.J Nationally, less than one percent of tires reported annually result in death. (Jd. at 6-7). The Arson Review Committee concluded Vasquez's estimates were exceptionally high and suggested a lack of knowledge, a bias towards finding arson, or an attempt to prejudice the jury. (Jd. at 5-6.)



in Engineering Science from Harvard University. He is also the current Chairman of the Internal

Association for Fire Safety Science, a member of the NFPA and Society of Fire Protection

Engineers, and a prolific scholar in fire science.i" A copy of Dr. Beyler's report to the

Commission is attached as Exhibit 1.

Dr. Beyler found that the investigation of the Willingham fire did not "comport

with either the modern standard of care expressed by NFPA 921 , or the standard of care

expressed by fire investigation texts and papers in the period 1980·1992." [Ex. 1 (Beyler

Report) at 51.] He concluded that the investigators "had poor understandings of fire science and

failed to acknowledge or apply the contemporaneous understanding of the limitations of fire

indicators." (Jd.) Dr. Beyler further concluded that the methodologies applied in the

Willingham case "did not comport with the scientific method or the process of elimination."


At Its core, modem fire science requires the formulation and testing of

hypotheses. (Id. at 1-2.) Conclusions are properly drawn only when a single hypothesis survives

the testing process. (Jd.) Ifa fire is to be deemed arson, then all accidental and natural causes

must be eliminated. (Jd. at 4.) Dr. Beyler concluded the investigators in the Willingham case

simply failed to employ this methodology. (Id. at 2; see also id. at 4.)

In particular, Dr. Beyler reported that Fire Marshal Vasquez's opinions were


"nothing more than a collection of personal beliefs that have nothing to do with science-based

fire investigation." (ld. at 50.) Dr. Beyler likened Fire Marshal Vasquez's testimony about

interpreting fires=-such as, "the fire does not lie, it tells me the truth"-to the work of "mystics"

27 In addition, Dr. Beyler is the Technical Director of Hughes Associates, Inc., an independent fire protection engineering finn in Baltimore, Maryland. Dr. Beyler holds a "Top Secret" Security Clearance from the U.S. Department of Defense.


or "psychics." (Id. at 49.) He further found that Fire Marshal Vasquez "seems to be wholly

without any realistic understanding of fires and how fire injuries are created." (ld. at 50.)

Dr. Beyler also described Fire Marshal Vasquez's statistics on the proportion of

fires which are in fact arson as "remarkable and far exceed[ing] any rational estimate."

(Ex. 1 (Beyler Report) at 48.] Those statistics reflect Fire Marsha .. Vasquez's "predisposition to


find arson in his cases[,J" which Dr. Beyler concludes "directly violates NFPA 921 and

professional norms in general." (ld.)

In sum, Dr. Beyler informed the Commission that "[a] finding of arson could not

be sustained" in the Willingham case, based on the modern standard of care or a

contemporaneous standard. (Id. at 51.) In reaching these conclusions, Dr. Beyler otfered

opinions on numerous issues that corroborate those expressed by Dr. Hurst and the experts on the

Arson Review Commission, Among the findings Dr. Beyler reported to the Commission were

the following:

Floor Patterns: Floor patterns cannot reliably be used as an arson indicator in fully developed fires. (Jd. at 6.) Burning foam rubber and melting plastics can create patterns that look like liquid spills. (/d. at 7, 8.) Laboratory analysis is necessary to determine if there is an accelerant present. (Id.) The floor patterns observed throughout the children's bedroom, in the hallway, and on the porch "need not be associated with the cause of the fire at all." (Id. at 45.) Instead, the bedroom and hallway "had simply been fully involved in flame," such that the associated damage would be expected. tId. at 46.)

Multiple Origins: The theory of multiple origins in the bedroom, hallway, and porch is inconsistent with early eyewitness testimony that no flames were visible on the porch when Mr. Willingham was already outside and that smoke flow from the hallway was modest initially. (Jd. at 48-49.)

V Patterns: A V pattern "simply indicates burning at the base of the Vat some time during the fire." (Jd. at 5.)

Melted Aluminum Threshold: Far from being an indicator of accelerant or arson, flame temperatures from ordinary combustibles like wood produce temperatures sufficient to melt aluminum. tId. at 49.)





= TilesBumed from Accelerant Underneath: Vinyl tile edge curling can occur in the absence of accelerants due to radiant heat. (Id. at 6-7.)

8uto~.yentjlation: Fire Marshal Vasquez's theory of auto-ventilation as an indicator of arson is "inconsistent with modern fire science." (ld. at 49.) Instead, natural fires are known to, and do, hreak out windows. (Id.)

Crazed Glass: Crazed glass likely results from the application of water to hot glass during firefighting. (Id. at 48.) For that reason, NFPA 921 does not accept crazed glass as an indicator of the use of accelerant. (Id. at 10.)

Brow;n Rirrgs on Cement Porch: Although the fire investigators considered brown rings to be a sign of an accelerant that was ignited to start the fire, no samples of the concrete were taken for analysis, and alternative causes, such as the damaged container of charcoal lighter fluid found at the scene; were not considered. (Ia~ at 46, 48.) Interpreting the brown stain as an accelerant pattern is simply "without merit." (Id. at 48.)

• Low ~3um: Neither NFPA 921 nor the fire science literature accept low bum on walls as a good indicator of ignitable liquids. (Id. at 11-12.) 28

4. Other Leading Arson Experts Concur

In addition to Dr. Hurst, Dr. Beyler, and the experts on the Arson Review

Committee; other independent experts have contacted the Commission about the arson science in

the Willingham case.


Mark Goodson

Mr. Goodson is an engineer and fire investigation expert in Denton, Texas. He

holds a B.S. in Electrical Engineering from Texas A&M, and has served as a court-appointed

special master. He is also a Fellow of the American Academy of Forensic Sciences and a

member of the IAAI and the NFP A.

In a letter to the Commission, Mr. Goodson concluded that Dr. Beyler's findings

were accurate, and commended Dr. Beyler's report as excellent. [Ex. 10 (Letter from Mark

28 Dr. Beyler also rejected the contention that the burning to the exterior walls of the house was not consistent with a natural fire and therefore indicated arson. [Ex. 1 (Beyler Report) at 48.] He concludes that there is "no basis for this notion in modem fire science" and that the low burning of the exterior walls resulted from the heat from the ceiling flames on the porch. (ld.)


Goodson to Commission dated Sept. 23,2009) at 1.] Mr. Goodson also noted that Dr. Hurst's report on the Willingham case was ignored by the Governor's Office, and recommended reforms including, among others, Commission involvement in the post-conviction review process.

(/d. at 14.)

Mr. Goodson also informed the Commission that "many of the specific findings of deputy State Fire Marshal Vasquez made were known to be false long before NFPA 921 was published." [Ex. 11 (Letter from Mark Goodson to Commission dated Aug. 20,2010) at 1.] Among the indicators of arson that Mr. Goodson identified as havi ng been "discredited" were V patterns, crazed glass as an indicator of accelerant, and melting of a door threshold as an indicator of accelerant. (See id.)

(b) Dr. John D. DeHaan

The Commission also sought input from Dr. John D. DeHaan, who reviewed Dr. Beyler's report, Fire Marshal Vasquez's report, certain trial testimony, and other materials. A copy of Dr. DeHaan's letter to the Commission is attached as Exhibit 12.

Dr. DeHaan has more than 35 years of forensic experience with fires and explosives, and has testified as an expert witness in more than 50 cases. He holds a B.S. in physics from the University of Illinois and a Ph.D. from the University of Strathclyde in Glasgow, Scotland. Dr. DeHaan is the author of the widely-read textbook Kirk's Fire Investigation, now in its sixth edition. He is also a Fellow of the American Board of Criminalistics with a Fire Debris specialty, an IAAI certified fire investigator, and a NAFI certified fire and explosion investigator.

Dr. DeHaan concluded that "the original investigators in the Willingham case relied on investigative methods and indicators that have been shown to be unreliable."

[Ex. 12 (Letter from John D. DeHaan to Commission dated Aug. 19, 2010) at 9.] For example, 35

both Assistant Fire Chief Fogg and Fire Marshal Vasquez "misinterpreted floor bums ... as


proof of the presence of ignitable liquids even under beds without considering the contributions

of fall down ofbuming synthetic mattresses and bedding." (Jd. at 8.) They also misinterpreted

V patterns as indicating a point of origin, ignored inconsistent eyewitness testimony, and

erroneously believed that hot fires had to have an accelerant ignition, among other errors.

(Jd. at 7-9.)

* * *

Mr. Goodson and Dr. DeHaan bring to nine the total number of experts to date

who have reviewed the scientific evidence against Mr. Willingham and found it wanting. Each

of the a1leged indicators of arson on which Assistant Fire Chief Fogg and Fire Marshal Vasquez

relied has been found to be invalid by multiple experts. Even Mr. Willingham's prosecutor has

recognized that the forensic report in the case was "undeniably flawed.,,29

Nor can the aggregation of many faulty indicators of arson amount to more than

the sum of its parts. "The adding of zeros to zeros, no matter how many, cannot amount to more

than zero.,,30 The so-called indicators of arson in the Willinghamcase are a heap of zeros. They

fail to provide any valid scientific basis to conclude a crime took place, much less that

Mr. Willingham committed the crime for which he was executed.


The Injustice To Mr. Willingham Is Apparent

Upon Comparison To The Case Of Ernest Ray 'Villis

The fire that Todd Willingham was convicted of setting is eerily similar to that fur

which another defendant, Ernest Ray Willis, was convicted, but their ultimate fates were very

29 John Jackson, Guest Columnist, Willingham Guilt Never In Doubt, CORSICANA DAILY SUN, Aug. 28, 2009, available at )1ttp://corsicanadailysun.com/thewi1linghamfiles/x46870434/-08-28- 09-JACKSON-Guest-Commentary-Willingham-guilt-never-in-doubt.

30 United States v. Martinez, 54 F.3d 1040, 1045 (2d Cir. 1995) (concurring opinion).


different: Mr. Willis was exonerated, released from prison, and compensated by the State of

Texas for the years he spent wrongly imprisoned. [See Ex. 5 (Trio! By Fire) at 56; see also The

Justice Project, TX,: Evidence Questioned in 2004 Execution, available at

http://www . thej usticeproj ec t.orglpress/tx -evidence-questioned- in-2 004-execution.]

Mr. Willingham was executed after spending more than eleven years on Texas's death row.

In 1987, Mr. Willis was convicted of capital murder for allegedly setting a fire in

Iraan, Texas that killed two women. Willis v, State, 785 S. W.2d 378 (Tex. Crim. App. 1989).

The SFMO investigators, like the investigators in Mr. Willingham's case, found pour patterns,

puddle configurations, and other "indicators" of arson and concluded that there were multiple

points of fire origin in the house. Id. at 380-81. Testifying as an expert in Mr. Willis's trial, the

assistant investigator, Fire Marshal Ed Cheever (who had only been on the job eight months

when he participated in the investigationj'" repeatedly told the jury that aU the evidence pointed

to arson: Mr. Willis allegedly had poured and ignited an unidentified inflammable liquid on

various pieces of furniture and various locations around the house.32 Id. at 380-81. A private

insurance investigator also told the jury that the fire was arson-based. Id. Mr. Willis, like

Mr. Willingham, maintained his innocence throughout the proceedings.

Mr. Willis, like Mr. Willingham, was sentenced to death. See Willis v. State,

785 S.W.2d at 378. He spent 17 years on Texas's death row. In the meantime, James Blank, a

New York patent attorney, became convinced of Mr. Willis's innocence and took on his defense


pro bono. [See Ex. 5 (Trial by Fire) at 56.] Mr. Blank and his law firm spent millions on fire

consultants, private investigators, forensic experts, and others to exonerate Mr. Willis. (Id.)

31 See, e.g., Ex. 1 (Beyler Report) at 21.

32 Fire Marshal Cheever later admitted that his analysis in the Willis investigation was based on inaccuracies and incorrect assumptions. Steve Mills & Maurice Possley, Man Executed On Disproved Forensics, CHICAGO TRIBUNE, Dec. 9, 2004, at Cl.


.. ~

One of the experts hired by Mr. Willis's pro bono team was Marshal Smyth, a fire investigator. Mr. Smyth testified, at Mr. Willis's post-convictionnearing, that "the pour pattern theory was physically impossible, and that the bum damage to the house could not have been caused by an accelerant such as gasoline." Willis v. Cockrell, No. P-OI-CA-20, 2004 WL 1812698, * 1 0 (W.O. Tex. Aug. 9, 2004). Mr. Smyth correctly identified the bum damage throughout the house as the result of flashover conditions. Id. The Texas trial court disregarded Mr. Smyth's testimony. Id.

Mr. Willis's defense team persisted and pursued a federal habeas petition.

Presented with new evidence, a federal judge vacated Mr. Willis's conviction and ordered that the State release him or grant him a new trial. Willis v. Cockrell, No. P-OI-CA-20, 2004 WL 1812698 (W.O. Tex. Aug. 9,2004). Before commencing a new trial, the Pecos County district attorney hired two experts, Dr. Gerald Hurst and Mr. E. Kendall Ryland, to review and evaluate the SFMO investigators' original report and conclusions. See Certification of Actual Innocence, filed by Ori T. White, District Attorney (Nov. 30,2004) ("Certification of Actual Innocence"); In re Expunction of E.R. w., 281 S.W.3d 572, 573 (Tex. App. 2008). Dr. Hurst reported that "not a single item of physical evidence in this case ... supports a finding of arson," calling the original report and conclusions "old wives' tales." Certification of Actual Innocence at 1; Scott Gold & Lianne Hart, Inmate Freed After 17 Years on Death Row, LA. TIMES, Oct. 7, 2004, at AI. Mr. Ryland agreed with Mr. Smyth's testimony and opinion that the bum damage throughout the house was the result of flashover conditions or full room involvement.

See Certification of Actual Innocence at 2.

Based on these experts' opinions that no physical evidence supported the finding of arson, the district attorney declined to prosecute Mr. Willis a second time and moved to


dismiss all charges against him. In re Expunction of E.R. w., 281 S.W.3d at 574. Mr. Willis was

freed on October 6, 2004, less than eight months after Mr. Willingham was executed. The

district attorney later supported Mr. Willis's "actual innocence" compensation claim and his

successful expunction action. See id.; see also Certification of Actual Innocence.


State Officials Fail To Act


The Duties Of The State Fire Marshal's Office

The State Fire Marshal's Office has the sole responsibility under Texas law to

investigate all arson and suspected arson in the state of Texas, Tex. Govt Code Ann.

§§ 417.004(b), 417.007 (Vemon 2005). The Legislature appointed the State Fire Marshal as

"chief investigator" and granted him the power to compel the testimony of witnesses and the

production of other evidence. Id. at § 417 .004( d). After investigating and determining that a

particular fire is arson, the SFMO is charged with referring the matter to the appropriate

prosecutor, providing "all evidence and relevant information" gathered in the course of the


investigation, and assisting in the prosecution. Id.

Concomitant with the SFMO's explicit statutory duties is an implied continuing

duty to ensure that the matters referred for prosecution were in fact properly referred-i.e., that

the SFMO continues to believe, based on current methodologies and practice, that "there is

sufficient evidence to charge a person with arson, attempted arson, conspiracy to commit fraud,

or another offense related to the matter under investigation." Tex. Gov't Code Ann.


§ 417.007(e). If past methodologies are discredited, the SFMO has a duty to identify cases, such

as the Willingham case, where people may have been convicted based on those discredited and

unreliable methodologies,

This duty requires the SFMO to inform the criminal justice system of changes in

the methods of arson analysis that call into question past SFMO investigations and referrals for


prosecution. Regardless of the status of a case=-pre-trial, trial, or post-conviction-the SFMO is

obligated by its special, statutorily-created position to timely inform the criminal justice system

(including judges, prosecutors, the Board of Pardons and Paroles, and the Governor) when the

possibility arises that an incorrect arson determination has been made because of the SFMO's

use of out-dated and discredited methodologies. This duty to correct flows from the SFMO's

legislatively-granted position in arson prosecutions as basically the adjudicator of whether a

crime-carson+-occurred. Thus, like a prosecutor whose primary duty is "not to convict but to

see that justice is done," the SFMO's duty is also to ensure that justice is done. See Tex. Code

Crim. Proc. Ann. art. 2.01 (Vernon 2005).

The publication ofNFPA 921 and research establishing that the methodologies

employed by SFMO investigators in the past were unreliable is exculpatory information, Thus, it

was incumbent on the SFMO to inform prosecutors and affirmatively alert and educate the

criminal justice system to ensure that justice would be provided to people previously convicted

based on unreliable analyses.

Even without the SFMO's duties arising from its special position in the Texas

criminal justice system, the SFMO should have undertaken the identification and review of its

past analyses of arson as a matter of professional responsibility. As Dr. Thomas L. Bohan, past

President of the American Academy of Forensic Science, stated in a recent letter to the


Commission, criticizing the SFMO's "unethical negligent behavior": "[OJfa11 categories of


persons practicing science-those assisting in criminal investigations have by far the greatest

obligations to correct their errors, And to correct them in a timely fashion, which means as soon


as they discover them." [Ex. 14 (Letter from Thomas L. Bohan to Commission dated

Aug. 22, 2010) at 3.]33

As the State of Texas's chief investigator of arson and suspected arson, the SFMO

is professionally obligated to keep informed about the current state: of fire science, fire

investigation, and arson analysis, and to review its procedures and policies regularly to keep

them up-to-date. The SFMO is also professionally obligated, and implicitly required by the

Legislature, to ensure that unreliable arson analyses are no longer performed in the State of

Texas-i.e., that all fire investigations and arson analyses comport with accepted, reliable

guidelines, such as those laid out in NFPA 921, and do not depend on out-dated, unreliable, and

debunked methodology to conclude that a particular fire was arson.


NFPA 921

The National Fire Protection Association ("NFPA") published the first edition of

NFPA 921, Guidefor Fire and Explosion Investigations, in 1992, applying the scientific method

to fire investigation and debunking the folklore previously used in many fire investigations. By

2000 at the latest, NFP A 92]1 was accepted as the established standard of care across the country

for fire investigations." NFPA 921 presents a basic methodology for investigating any fire or

explosion and includes specific methods for planning and conducting an investigation, as well as

methods for collecting, interpreting, and documenting evidence.

33 See also Ex. 15 (Letter from Paul C. Giannelli to Commission dated Aug. 17,2010) ("The publication ofNFPA 921 should have also triggered the duty to review old cases that were based on the prior discredited methodology .... the prosecutors, defense attorneys, and judges in cases in with their experts had testified using the now discredited process should have been notified that [that] process was invalid.").

34 In 2000, the IAAI formally endorsed the adoption of the 2001 edition ofNFPA 921.

[Ex. 9 (Arson Committee Report) at 40.] In 1998, the National Fire/Arson Scene Planning Panel identified NFPA 921 as a "widely accepted consensus document." Nat"l Inst. of Justice, Fire and Arson Scene Evidence: A Guide for Public Safety Personnel, NlJ Research Report 8

(June 2000).


Designed to improve "the fire investigation process and the quality of information

on fires resulting from the investigative process," NFPA 921 represented a sea change from what

was previously widely taught to fire investigators. See NFPA 921, Introduction 921-1 (2008

ed.); John J. Lentini, The Mythology of Fire Investigation, SCIENTIFIC PROTOCOLS FOR FIRE

INVESTIGATION, 533 (2006) (explaining that the first two editions ofNFPA 921 addressed many

"of the myths about fire investigation" head-on, with sections highlighting-and correcting-

many previously held misconceptions). The 1992 edition focused on determining the "origin and

cause of fires involving structures," and the 1995 edition revised the chapters on evidence

collection, among other things. NFP A 921 , Introduction 921-1.

There is no question that the SFMO has long been aware ofNFPA 921. In fact, in

.. ~

his recent letter to the Commission, Paul Maldonado, the current State Fire Marshal, admitted

that the "SFMO staff began referencing and received training on NFPA 921 almost immediately

after its initial publication in 1992." [Ex. 16 (Letter from Paul Maldonado to Commission, dated

Aug. 20, 2010) ("Maldonado Letter") at 2.] In addition, Ed Salazar, Assistant Director of the

SFMO, testified before the Texas Criminal Justice Integrity Unit in November 2009 that the

SFMO had been using NFPA 921 as a standard for fire investigation since "[its] inception.t''"

2. The State Fire Marshal's Office Fails To Notify Anyone That Its Earlier Arson Investigations Were Flawed

Following the release ofNFPA 921, its use as a reference by the SFMO, and its

national recognition and acceptance as the standard of care for fire investigations and arson

analyses-all before Mr. Willingham's execution-the SFMO should have revised its standards

and trained its investigators using the NFPA 921 guidelines. In doing so, the SFMO should have

35 See Recording of November 13,2009 Meeting ofthe Texas Criminal Justice Integrity Unit, available at www.cca.court~:.state.tx.us/tcj iuimeetings.asp.


identified past fin: investigations and arson analyses, such as the Willingham case, the outcomes

of which might have been different had the investigator applied the NFPA 921 guidelines.

In fact, there is no evidence that the SFMO revisited, reevaluated, or revised its

standards, nor is there any evidence that the SFMO identified past arson findings that would not

have been made had the NFIP A 921 guidelines been followed. Nor has the SFMO advised State

officials that its fire investigators used unreliable methods, which may have resulted in erroneous

determinations of arson.


Instead, as discussed below, in its recent letter to the Commission, the SFMO

refused to acknowledge that the conclusions in the Willingham case could not be reconciled with

currently accepted methodology. [Ex. 16 (Maldonado Letter).] This insistence on supporting

unreliable and debunked methodologies and associated folklore raises serious questions as to

whether the SFMO has taken steps to ensure that such unreliable analyses and investigations are


no longer performed in the State.

More particular to the Willingham case, the SFMO failed, prior to

Mr. Willingham's execution in February 2004, to inform anyone in the criminal justice system or

in the Board of Pardons and Paroles, that as a result of the application of discredited

methodologies to arson investigations, it was likely that a man had been prosecuted, convicted,

and sentenced to die for crimes that had never been committed. Indeed, at no time between

Mr. Willingham's trial and execution did the SFMO take any action at all to review its report and

investigation on the Willingham fire; to alert anyone in the criminal justice system that the

Willingham investigation was based on unreliable and disproved methodology; or to inform

anyone in the criminal justice system that new standards or guidelines had been accepted that

affected fire investigations and arson analyses.


.. ~


The State's "Fail-Safe" Procedures Fail To Prevent .Mr. Willlngham's Execution

As explained below, the Hurst Report, which presented compelling expert

evidence that Mr. Willingham was convicted on the basis of discredited arson science, was

provided to the Governor's Office, the State's Prosecuting Attorney, the Navarro County District

Attorney, and the courts prim to Mr. Willingham's execution. Nonetheless, Mr. Willingham was

executed at 6:20 p.m. on February 17,2004. The executive clemency process that was supposed

to act as a "fail-safe" for death row prisoners failed to save Mr. W Hingham from being executed

based on faulty scientific evidence. In addition, the State's statutory provisions for judicial

review of new evidence of innocence also failed to give Mr. Willingham the opportunity to

present his new evidence.

1. Mr. Wlllingham's Final Days


Mr. Willingham's Clemency Application and the Hurst Report

By December 2003, Mr. Willingham had exhausted all legal avenues of appeal

available to him. His last petition to the United States Supreme Court was denied in November,

Willingham v. Texas, 516 U.S. 946 (1995), and his execution was set for February 17,2004.

Mr. Willingham's last chance at that point was executive clemency.

During the fall of 2003, Petitioner Patricia Willingham Cox tried to reach

Dr. Hurst, an Austin-based arson expert, to enlist his aid in proving Mr. Willingham's innocence.

Dr. Hurst was the arson expert whose analysis of the fire in the Willis case led to Mr. Willis's

eventual release from prison, Petitioner Cox had been impressed by Dr. Hurst, whom she had

seen interviewed on a television program about debunking unscientific fire evidence. Petitioner

Cox believed Mr. Willingham's continued assertions of innocence and hoped Dr. Hurst would be

able to identify the mistakes in the arson evidence used to convict Mr. Willingham.


On January 26,2004, Mr. Willingham, through his attorney Walter M. Reaves,

Jr., applied to the Texas Board of Pardons and Paroles (the "Board") for executive clemency,

seeking commutation of his death sentence to life imprisonment and a 90-day reprieve from

executionr'" In re Cameron Todd Willingham, Petitioner (Before the Governor of the State of

Texas and the Texas Board of Pardons and Paroles), Application for a Ninety-Day Reprieve

from the Execution of His Death Sentence and for Commutation of Sentence to Imprisonment

for Life (Jan. 26, 2004) (submitted herewith as Ex. 17).37 Sometime the next week,

approximately two weeks before Mr. Willingham's scheduled execution, Petitioner Cox finally

reached Dr. Hurst, who agreed to review the Fire Marshal's report on a pro bono basis.

Dr. Hurst knew that at least his preliminary analysis would have to be completed quickly ifthere

were any hope of it affecting Mr. Willingham's fate.

At 1:20 pm, on Friday, February 13,2004, the Board advised Mr. Reaves by fax

that it had decided not to recommend commutation of the death sentence or a reprieve. [Ex. 19

(Letter from Board to Mr. Reaves dated Feb. 13,2004).] According to the voting tally provided

to Mr. Reaves, the Board's decision had been unanimous. (Id.) The Board did not grant

Mr. Willingham an interview with a member of the Board, as he had requested, and did not hold

a hearing on Mr. Willingham's clemency application. In fact, Board members did not even meet


36 In accordance with the Texas Constitution, the Governor is authorized to grant reprieves, commutations of sentence, and pardons only upon a written and si gned recommendation of a majority of the Board. Tex. Const, Art. IV, § 11(b); see also 37 Tex. Admin. Code §§ 143.1 (2010), 143.4I(b) (2010), 143.57(g) (2010). In capital cases, the Governor has the power to grant a reprieve of up to 30 days without Board recommendation. Tex. Const. Art. IV, § II(b); 37 Tex. Admin. Code § 143.41(a).

37 Exhibit 17 is a copy of the Application by Mr. Reaves as maintained in his files. Although the Innocence Project requested documents from the Board related to the Application, pursuant to the Open Records Act, the Board did not produce a copy of the Application with its response. [See Ex. 18 (Board Response to Open Records Request dated Feb 10, 2(06).J


to discuss Mr. Willingham's application for clemency, but rather--in accordance with Board

practice-voted by fax on the basis of information provided to them by Board staff. 38

That same day, Dr. Hurst completed his preliminary analysis of the Fire Marshal's

report and signed an affidavit summarizing his findings (the "Hurst Report" described earlier).

(See Ex. 6.) Dr. Hurst's analysis included a review of photographs ofthe "crime" scene, the

Willingham children's autopsy reports, and the Fire Marshal's report. As explained above, the

Hurst Report was a serious critique of the validity of the arson evidence on which Todd

Willingham was convicted. Dr. Hurst described the Fire Marshal's report as a "remarkable

document" that contains "many critical errors" and "reflects the shortcomings in the state of the

art" at the time the Willingham fire was investigated. (Id. at I.) He explained that in the past,

fire investigators relied on theories that were accepted "on faith," but key advances had been

made in the years since the Willingham fire and NFPA 921 had become the "de facto standard of

care for the fire investigation community." (/d.) Dr. Hurst's report analyzed the "indicators of

incendiarism" cited in the Fire Marshal's report under the new scientifically rigorous standards

and concluded that most of the conclusions reached by the Fire Marshal were invalid. (Id.)

Dr. Hurst's analysis strongly suggested that Mr. Willingham had been convicted for setting a fire

even though there was no valid evidence that the fire had been intentionally set.

38 Texas law does not require the Board to meet on clemency applications; however, if a meeting is held it must be open to the public and the decision must be announced in an open meeting. Tex. Gov't Code Ann. § 508.047(b); 37 Tex. Admin. Code § 143,43(h), 0) (2010). The Board's practice has been not to meet or hold hearings, but rather to send materials to its members, who fax in their separate votes. See Tex. Appleseed & Tex. Innocence Network, The Role of Mercy:

Safeguarding Justice in Texas Through Clemency Reform, 2 (2005), available at http://www.texasaopleseed.r:letlindex.php?option=com docman&task=doc download&gid=364 &Itemid=.



The Governor's Office Is Informed Of Dr. Hurst's Analysis

After the Board announced its decision to deny Mr. Willingham's request for

clemency, Mr. Reaves wrote to Governor Perry that afternoon, requesting a 30-day reprieve of

Mr. Willingham's execution. [Ex. 20 (Letter from Mr. Reaves to Gov. Perry dated Feb. 13,

2004).] Mr. Reaves's letter focused on the recent discovery that the fire was "probably not set


by anyone" and explained that Dr. Hurst had rebutted the Fire Marshal's claims as either not

supported by science or no longer being generally accepted. (ld.) Mr. Reaves described

Dr. Hurst's work in other cases where he had "successfully obtained the release of persons who

were convicted of crimes almost identical to this one." (ld.) He stressed how close they were to

obtaining evidence of Mr. Willingham's actual innocence and the need for additional time to

conduct a complete investigation. "The death penalty, whether you agree with it or not, ...

should be reserved for those crimes about which there is no doubt about the guilt of the person .

. . , Ifthere are any doubts, I think we have an obligation as a society to prevent this execution."


Petitioner Cox made numerous calls to Michael Schofield, an attorney in the

Governor's Office regarding the significance of Dr. Hurst's analysis. Petitioner Cox had first

spoken to Mr. Schofield on January 9,2004 shortly after she had sent a personal appeal on behalf

of Mr. Willingham to the Governor's Office; Mr. Schofield had assured her that he would

present the Willingham case to the Governor. On February 16, during their last call before

Mr. Willingham's scheduled execution date, Mr. Schofield told Petitioner Cox that he would

brief the Governor about the case and the Hurst Report the next morning. On the afternoon of


February 17, at 4:52 pm, the Governor's Office received a copy of the Hurst report from the

Office of the Attorney General [Ex. 21 (Fax from Office of Attorney General to Mike Schofield



dated Feb. 17,2004)], which no doubt received it as a result of the renewed habeas proceedings

described below.


Mr. Willingham Applies For A Writ Of Habeas Corpus Based on the Hurst Report

As soon as Dr. Hurst completed his affidavit, on February 13,2004, Mr. Reaves

also filed a subsequent Application for Writ of Habeas Corpus, SUbmitting the Hurst Report as

"'newly discovered expert opinion' regarding the cause and origin of the fire in this case,

reflecting [Mr. Willingham's] factual innocence" that requires review under Article 11.071,

Section 5 of the Texas Code of Criminal Procedure. [Ex. 23 (Petitioner's Subsequent

Application for Writ of Habeas Corpus and Request for Stay of Execution, Ex Parte Cameron

Todd Willingham, No. 244670 (Feb. 13,2004) ("Application for Writ") at 2.] At the same time,

Mr. Reaves requested that the Court issue an order staying Mr. Willingham's execution until his

application was fully considered. (ld. at 9.) Mr. Reaves served the Application for Writ with a

copy of the Hurst Report on the State's prosecuting attorney and on the Navarro County District

Attorney. [Id. at 10 (Certificate of Service).]

In its opposition filed the next day, the State questioned Dr. Hurst's qualifications

and argued that his affidavit did not present newly discovered evidence because it was based on

standards that had been available tor years.39 The State did not address the substance of

39 See Ex. 24 [State's Opposition to Petitioner's Subsequent Application for Writ of Habeas Corpus and Stay of Execution, Ex Parte Cameron Todd Willingham, No. 244670 (Tex. App. Feb. 16,2004)].

The State also submitted an undated statement by Ronnie Kuykendall, Mr. Willingham's exwife's brother, stating that, prior to his execution, Mr. Willingham had confessed to his ex-wife that he set the fire. That statement clearly was inadmissible hearsay. Moreover, as

Mr. Willingham pointed out in his response to the State's opposition, Mr. Kuykendall's statement was inconsistent with statements by Mr. Willingham's ex-wife herselfthat she believed Mr. Willingham was innocent. Ex. 25 (Petitioner's Response to State's Opposition to


Dr. Hurst's affidavit at al1, and did not argue that his critique of the Fire Marshal's report was

incorrect. There 'is no evidence that the State's prosecuting attorney made any effort to contact

Dr. Hurst or any other arson expert to discuss his findings. Nor is there any evidence that the

State reached out to the SFMO for its view of the Hurst Report.

On. February 17, the Court of Criminal Appeals dismissed Mr. Willingham's

application as not meeting the requirements for consideration under the Texas Code of Criminal


Procedure as a claim for newly discovered evidence of actual innocence, and denied his request

for a stay of execution. Ordier, Ex Parte Cameron Todd Willingham, No. 35162-02 (Tex. Crim.

App. Feb. 17,2004).

(d) Mr. Willingham Is Executed

Despite the Hurst Report's powerful evidence that Mr. Willingham was convicted

on the basis of faulty forensics-a suggestion that has since been confirmed by numerous

respected arson experts-at 6:20 pm on February 17,2004, Mr. Willingham was executed by

lethal injection. The next day, Mike Schofield told Petitioner Cox that the Governor had decided

that further review would only prolong the family's agony, because Mr. Willingham would be

executed "anyway" The fail-safe for death row prisoners in Texas failed Cameron Todd


2. The Breakdown Of Texas's Fail-Safe Procedures

Neither the Governor's Office nor anyone in the judicial system delayed

Mr. Willingham's execution in response to the Hurst Report, notwithstanding Dr. Hurst's

recognized standing in the field of arson investigation and the serious doubts about the evidence

against Mr. Willingham that his report raised. In fact, documents received by the Innocence

Petitioner's Subsequent Application for Writ of Habeas Corpus, Ex Parte Cameron Todd Willingham, No. 24-4670 (Tex. App. Feb. 13,2004).


Project in response to requests under the Texas Public Information Act reveal that the substance

of the Hurst Report was ignored by State officials who had the power to prevent, or at least

delay, Mr. Willingham's execution for a crime that the Hurst Report strongly suggested was not


On March 1,2006, the Innocence Project submitted a request to the Governor's

Office for any documents concerning the Hurst Report. [Ex. 26 (Letter from Innocence Project

to Office of the Governor dated Mar. 1,2006).] Under the Texas Public Information Act, a


governmental body that wishes to withhold requested information pursuant to an exception under

the Act must "ask for a decision from the attorney general about whether the information is

within that exception," notify the requester that the information is being withheld, and provide

the requester with a copy of its written request to the attorney general for a ruling. Tex. Gov't

Code Ann. § 552.301(a), (b), (d) (Vernon 2009).

On March 14,2006, the Governor's Office responded to the Innocence Project's

request by producing two documents: Mr. Reaves's February 13, 2004 letter to Governor Perry

seeking a reprieve and the February 17,2004 fax from the Office of Attorney General to the

Governor's Office attaching the Hurst Report. [Ex. 27 (Letter from Governor's Office to

Innocence Project with attac:hments, dated Mar. 14,2006).] The response did not include a

single memorandum or note reflecting that the substance of the new scientific evidence presented

by the Hurst report had been reviewed.Y There is no evidence that the Governor's Office even

40 The response purports to be a complete response to the Innocence Project's request. It did not state that the Governor's Office was withholding any information based on an exception to the Act, nor did it indicate that the Governor was seeking a ruling on whether any information could be withheld on the basis of an exception. If, in fact, the Governor's Office withheld responsive documents without notifying the Innocence Project and without seeking an opinion by the Attorney General, that would be a criminal violation of the Texas Public Information Act. Tex. Gov't Code Ann. § 552.353(a) (Vernon 2009) ("An officer for public information, or the


called the SFMO to inquire as to Dr. Hurst's reputation or credibility or to ask about the effect of

NFPA 921 (which Dr. Hurst stated had been adopted ten years earlier) on the SFMO's view of

the fire in the Willingham case. The Governor's Office did not even try to find Dr. Hurst-who

was located in the State's capital-s-to ask any questions about his report. Instead, it appears that

the Governor's Office simply ignored it and allowed Mr. Willingham to be executed less than 90

minutes after receiving powerful evidence that his conviction was based on discredited science.41

Nor does it appear that the State's Prosecuting Attorney or the Navarro County

District Attorney did anything to investigate the serious concerns that the Hurst report raised about Mr. Willingham's conviction.f Instead, the State simply filed an opposition to

Mr. WilIingham's subsequent application for a writ of habeas corpus and request for stay of

execution, in which it made a technical argument that Dr. Hurst's affidavit, signed


officer's agent, commits an offense if, with criminal negligence, the officer or the officer's agent fails or refuses to give access to, or to permit or provide copying of, public information to a requestor ... ").

41 Although Govemor Perry has made statements to the media indicating that he had a "pretty extensive amount of information," including the "recommendation of both my legal side and the courts," to review before acting on Mr. Willingham's clemency petition and request for reprieve, that is belied by the apparent lack of attention his office paid to the Hurst Report. See Todd J. Goldman, Governor Rick Perry Defends Execution Of Corsicana Alan Some Experts Say Was Innocent, DALLAS MORNINC, NEWS, Sept. 20,2009, available at

http;/ /www.dallasnews.com/sharedcontent/ dws/news/texassouthwestistories/091809dnrnetperryc orsicana.19263fD9c.html.

42 The only documents provided by the Office ofthe Attorney General in response to a

May 4, 2006 Open Records Act request by the Innocence Project were pleadings and court papers in connection with Mr. Willingham's subsequent applications for a writ of habeas corpus and request for a stay of execution, [See Exs. 28 (Letter from Gabriel S. Oberfield to Karen Rabon dated May 4, 2006) ~:~ 29 (Cover Letter from Karen Rabon to Gabriel S. Oberfield dated May 12, 2006).] The Office of the Attorney General withheld all additional responsive documents based on the position that those documents were subject to an exception under the Public Information Act, which was subsequently upheld by the Open Records Division of the Office of the Attorney General. (Letter from Yen-Ha Le to Karen Rabon dated Ju1. 25,2006.)


February 13, 2004, was not newly discovered evidence within the meaning of the Code of

Criminal Procedure.


Interference With the Texas Forensic Science Commission Inquiry'"

As discussed above, in August 2008, the Texas Forensic Science Commission

agreed to conduct a review of the arson evidence in the Willingham case, and in December 2008,


it voted to engage Dr. Beyler as the "most qualified candidate" to conduct the investigation.t"

In February 2009, Sam Bassett, then-chair of the Commission, was called to the

Governor's Office for a meeting with two of the Governor's advisors, who pressed him to drop

the Willingham investigation and criticized the retention of Dr. Beyler as a waste of money.


Those efforts to derail the investigation were not successful.

On July 17,2009, the Commission received Dr. Beyler's draft report, which it

, discussed at its July 24,2009 meeting. The Commission then provided Dr. Beyler with

comments and on August 20, 2009, Mr. Bassett received Dr. Beyler's final report (dated

August 17) which conc1uded that "[a] finding of arson could not be sustained based upon the

standard of care expressed by NFPA 921, or the standard of care expressed by fire investigation

tests and papers in the period 1980-1992." {Ex. 1 (Beyler Report) at 50-51.]

43 Again, the Commission's pending investigation and the investigation that Petitioners are seeking herein are different. The Commission's investigation is to consider whether there was any negligence or misconduct in the SFMO's investigation of the Willingham fire and Fire Marshal Vasquez's testimony, as well as to determine whether the SFMO breached its duties by failing to inform the Texas criminal justice system of the radical changes in fire investigation science and correct its testimony and analyses in cases in which faulty science may have been used. Petitioners here are seeking an investigation into misconduct by State officials to clear Mr. Willingham's reputation which has been injured by his wrongful conviction and by the subsequent conduct of State officials described herein.

44 Minutes ofOec. 12,2008 Commission meeting in San Antonio, Texas, at 3, available at http://www.fsc.state.tx.us/documents/D 121208MeetingMinutes.pdf.

- . .."



Rather than allow Dr. Beyler to present critical findings to the Commission, on

September 30,2009, two days before a Commission meeting scheduled for that purpose, the

Governor replaced Mr. Bassett and two other members ofthe Commission, Alan Levy and

Aliece Watts, with three new appointees." Governor Perry named John Bradley chair of the

Commission, and Mr. Bradley immediately cancelled the scheduled hearing on the Willingham


Mr. Bradley further delayed the Commission's investigation by announcing in

November 2009 that before proceeding, the Commission "must first develop some [rules] to

know how to handle the complaint about the Willingham case and rhe two other complaints that

are pending before it" and that "the commission might need some period of confidentiality to

allow for internal discussions and review of investigative documents in cases before the

commission discusses them public1y.'.47

45 See Christy Hoppe, Gov. Perry Replaces Head of Agency Investigating Texas Arson Findings, THE DALLAS NEWS, Oct. 1,2:009, available at http://www.dallasnews.com/sharedcontentidws/dnllatestnews/storiesl100109dntexperryarson.lcf 2d2edb.html. Over the weeks that followed, Governor Perry also replaced the fourth commission member subject to gubernatorial appointment. See Dave Montgomery, Texas Forensic Science Commission To Reopen Discussion of Willingham Case This Month, STARTELEGRAM, April 11, 2010, at Section A.

46 See Christy Hoppe, Gov. Perry Replaces Head of Agency Investigating Texas Arson Findings, THE DALLAS NEWS, Oct. 1, 2009, available at

http://www .dallasnews.comhharedcontent/dws/dnllatestnews/storiesl1 00 I 09dntexperrvarson.l cf 2d2edb.html.

47 Mike Ward, Bradley Says He Wants to Adopt Rules on Handling Complaints Before Investigating Wrongful Execution Claim, THE AMERICAN STATESMA.N, Nov. 11,2009, available at http://www.statesman.cominews/contentiregionllegislature/stori~:s!2009/

11/11/1 I Iljustice.btml.



The reconstituted Commission's first meeting was held on January 29,2010, and

there was no discussion of the Willingham investigation." At the meeting, the Commission

adopted Policies and Procedures which provided that investigations were to be conducted by

panels who would make recommendations to the full Commission." The Commission took the

position that its investigative panels were not subject to the Texas Open Meetings Act, Tex.

Gov't Code Ch. 551, and thus could meet in private. A four-member panel, chaired by Mr.

Bradley, was appointed to investigate the Willingham case. 50


At its July 23, 20 I 0 meeting, the Commission "discuss] ed] and consider[ ed]

recommendations from [the Willingham] investigation panel," including the panel's "preliminary


conclusion that arson experts in this case conducted their examinations in accordance with the

standard of practice" available at the time. 5 I The Commission voted to seek additional

comments from several experts while the final report was being drafted and agreed to consider

those comments prior to the Commission's next regularly scheduled meeting. 52

Subsequently, on August 2, 2010, the Commission sent letters to John DeHaan,

Terry Jacobson (the current Corsicana prosecutor), Dr. Beyler, the Innocence Project, and State

Fire Marshal Paul Maldonado, asking for comments and materials regarding the "standard of

48 See Ex. 31 (Minutes from Jan. 29,2010 Commission meeting, available at http://www.fsc.state.tx.lls/dqcllments/D 012910Meeting Minutes.rutf).

49 Commission Policies and Procedures adopted Jan. 29, 2010, § 4.0, available at http://www.fsc.state.tx.us!documents/D PoliciesandProcedures 0] 2910 .pdf.

50 See Ex. 32 (Minutes from Apr. 23,20] 0 Commission meeting, available at http://www.fsc.state.tx.us/documents/D 04231 OMeetingMinutes.pdf); see also Tex. Forensic Sci. Comm'n, FSC investigation panels, available at http://www.fsc.state.tx.lls/panels.html.

51 Ex. 33 (Minutes from July 23,2010 Commission meeting, avaiiable at http://www.fsc.state.tx.us/documents/D 072310MeetingMinutes.pdf) at 3.

52 [d.



practice as it existed in Texas at the time of the Willingham investigation and testimony.Y' In

addition to the comments it solicited, the Commission received several other letters regarding the

testimony relied on in the Willmgham casel including the letters from Dr. Bohan, Dr. Goodson,

.... -


and Mr. Giannelli referenced earlier. 54 All these letters indicated that the investigation

conducted in the Willingham case was inconsistent with current standards of practice, except


Incredibly, the current State Fire Marshal, Dr. Paul Maldonado, submitted a letter

declaring that the State Fire Marshal's Office "spent a great deal of time and energy to ensure as

thorough a response as possible" and "stand]s] by the original investigator's report and

conclusions." [Ex. 16 (Maldonado Letter) at 1.] Dr. Maldonado further stated that "[tjhe SFMO

Investigator for the Willingham case used principals [sic] that can be linked to NFPA 921

standards subsequently put in place." (Id.) As John Lentini has stated, Dr. Maldonado's letter


"seems to be designed to mislead the Commission and the public about the quality of the work

done by the Texas State Marshal's Office in the Willingham case." [Ex. 34 (Letter from John J.

Lentini to the Commission, dated Sept. l O, 2010 ("Lentini Letter") at 1-2.]

For example, Mr. Lentini points out that, in quoting Fire Marshal Vasquez's

report, the SFMO omits his erroneous conclusion that crazed glass indicates a fire that burned

unusually "fast and hot," which purportedly constituted one of more than 20 "indicators of

incendiarism." (Id. at 3- 4.) Instead, the SFMO only quotes the Vasquez report as stating, "The

53 See Letter from Commission to Craig C. Beyler dated Aug. 2, 2010; Letter from Commission to John D. DeHaan dated Aug, 2, 2010; Letter from Commission to Terry Jacobsen dated August 2,2010; Letter from Commission to Paul Maldonado dated Aug. 2,2010; Letter from Commission to Barry Scheck dated Aug. 2, 2010.

54 Ex. 14 (Letter from Thomas L. Bohan to Commission dated Aug. 22, 2010); Ex. 11 (Letter from Mark Goodson to Commission dated Aug. 20,2010); Ex. 15 (Letter from Paul C. Giannelli to Commission dated Aug. 17,20]0).



pieces of broken glass on the ledge of the north windows to the northeast bedroom disclosed a crazed "spiderwebbing condition." [Id.; see also Ex. 16 (Maldonado Letter) at 4.] The next sentence of the report-"This condition is an indication that the fire burned fast and hot"-is omitted entirely by the SFMO, as is the conclusion that the crazed glass was an indication of incendiarism. Nor does the SFMO address Fire Marshal Vasquez's improper opinions, such as the claim that Mr. Willingham's account was "not consistent with the facts" and is "pure fabrication" or the mystical assertion that, "A fire does not lie." [Ex. 4 (Vasquez Report) at 5.]

Indeed, Dr. Maldonado's letter is contradicted by a statement by Ed Cheever, a member of the State Fire Marshal's Office now and at the time of the Willingham investigation, acknowledging that the investigation in the Willingham case was not consistent with today's standards. See Steve Mills & Maurice Possley, Man Executed on Disproved Forensics, THE CHICAGO TRIBUNE, Dec. 9,2004, at Cl (quoting Cheever as saying: "At the time of the Corsicana fire, we were still testifying to things that aren't accurate today .... They were true then, but they aren't now. Hurst ... was pretty much right on .... We know now not to make those same assumptions."); see also Ex. 4 (Vasquez Report) at 1 (identifying Edward Cheever as one of the persons present during the examination of the fire).

The preliminary draft report prepared by Chairman John Bradley for consideration by the Commission on September 17,20] 0 concluded that "the fire investigators met the standard of practice that an ordinary fire investigator would have exercised at the time the original Willingham investigation and trial took place" and "there simply is insufficient credible or clear documentation of a contrary standard of practice to say otherwise."

[Ex. 35 (Draft Report, In re Cameron Todd Willingham, Complaint No. 09-01).} However, at the Commission's September 17,2010 public meeting, the Commission was unable to reach


consensus on the investigative report. The majority of the Commission disagreed with Mr. Bradley's draft and refused to adopt its findings. See Jennifer Emily, Panel Bucks Chief, Rejects Arson Report, THE DALLAS MORNING NEWS, Sept. 10, 2010, at A'. Instead, the Commission scheduled another meeting for November 19, 2010, at which it will meet with and interview arson experts about the views they expressed regarding the Willingham case.

The Harm To Mr. WiHingham's Reputation Continues

Despite overwhelming proof that the Fire Marshal's report that was the core evidence on which Mr. Willingham was convicted has been discredited, State officials continue


to insist on its credibility and to make statements affirming Mr. Willingham's guilt, further impeding Mr. Willingham's. right to remedy harm to his reputation. For example, as reported in a September 20, 2009 article in the Dallas Morning News, Governor Perry dismissed the expert evidence about the Willingham fire and made statements reflecting a continued belief in the grounds for Mr. Willingham's conviction. Todd 1. Goldman, Governor Rick Perry Defends Execution of Corsicana Man Some Experts Say was Innocent, DALLAS MORNING NEWS,

Sept. 20, 2009. The article quotes Governor Perry: "Trn familiar with the latter day supposed experts on the arson side of It,' Perry said, making quotation marks with his fingers to underscore his skepticism." Id. Governor Perry further insists, "1 have not seen anything that would cause me to think that the decision that was made by the courts of the state of Texas was not correct." Id.


More recently, Governor Perry remarked on the Commission's review of the

Willingham case:

At the end of this, I think what you will find, that an absolute monster who killed his own kids and the science is going to be there to back it up .. " And I think at the end of the day, this is what Texans will see and agree with, that this was a very, very bad man who killed his kids.55


Texas' Clemency Procedures And The Laws Regarding Review Of New Evidence Of Innocence Are Inadequate

The procedures for reviewing clemency petitions and for review by the judicial

. -


system of additional evidence of actual innocence did not work in Mr. Willingham's case. The

strong evidence provided by the Hurst Report in the days preceding Mr. Willingham's execution

was ignored, his clemency petition was denied, and his application to the court for relief was

dismissed without giving consideration to the substance of Dr. Hurst's report. Unfortunately,

this failure to attend to exonerating information or lack of capacity to assess it is not unique to

the Willingham case, but reflects systemic problems with the laws governing these processes that

only the Legislature can fix, including the absence of any appropriate means for the proper

review of scientific evidence of innocence.i''

55 Jeff Carlton, Texas Panel Ready To End Disputed Arson Inquiry, THE ASSOCIATED PRESS, Sept. 14, 2010, available at

http://news.yahoo.comis/ap/;W100915/ap on re us/us texas execution arson.

56 Even John Jackson, who prosecuted the Willingham case and is now a judge, has acknowledged that the State's procedures for reviewing scientific evidence of innocence are lacking. "The way things are done in Texas, I'm not completely certain that all last-minute requests for either clemency or stay of execution get the scrutiny they deserve." W. Gamer Selby, House Fire Left Key Players Wondering What Might Have Been Done Differently, AMERICAN-STATESMAN, Oct. 18,2009 available at

http://www.statesman.comln.ews/ contentlre gi onllegi sl ature/stories/2009/1 0/18/10 18willingham.h tm!. Judge Jackson also said that "[i]fthere had been a stay of execution in [the Willingham] case, that would have allowed a panel of disinterested experts to look at the evidence. We could have figured out whether the guy needed another trial or not." Id.


Problems ''''ith The Clemency Process

The clemency procedures in Texas are deficient in a variety of ways that call for a

statewide solution. These deficiencies include:



(a) There is no requirement that the Board meet in public to make clemency determinations or that it hold public hearings on all applications fer clemency. One of the critical elements of a high-quality clemency review is "an accessible public process that ensures adequate review ofthe clemency petition, support materials, and input from affected parties." See Tex. Appleseed & Tex. Innocence Network, The Role of Mercy: Safeguarding Justice in Texas Through Clemency Reform 2 .

(b) Another critical element of a high-quality clemency review is "a uniform, well-understood set of criteria used to judge clemency petitions." rd. That element is likewise absent in Texas. There are no statutory guidelines for review in place and the Texas legislature has not required that the Board adopt guidelines or substantive criteria on which to base its clemency recommendations ..

(c) A third element that should be present to ensure a high-quality clemency review is likewise absent in Texas, "safeguards to ensure that the party making clemency recommendations is insulated from political pressure." /d. In Texas, the Board "consists of seven members appointed by the governor with the advice and consent of the senate." Tex. Gov't Code Ann., § 50S.031 (a). The governor may remove any of his own appointees (as compared to members appointed by a prior governor) at any time and for any reason. [d.

§ 50S.037(c).

.. ,.

Lack of Access to the Courts

Mr. Willingham's lack of access to the courts to present the additional evidence of innocence contained in the Hurst Report also reflects a systemic problem. Notwithstanding




whether a prisoner has access to adequate representation in prior habeas proceedings, Texas law severely restricts a prisoner's ability to present a subsequent habeas petition. Article 11.071, section 5 of the Code of Criminal Procedure does not permit a court to consider a subsequent application for a writ of habeas corpus unless the prisoner meets an extremely high burden. As a result, research has shown that Texas's habeas statute "fails to consistently fulfill its role as the vital safety net protecting the innocent and undeserving from execution." Tex. Defender Serv., LETHAL INDIFFERENCE: THE FATAL COMBINATION OF INCOMPETENT ATTORNEYS & UNACCOUNTABLE COURTS IN TEXAS DEATH PENALTY ApPEALS 14 (2002), available at http://02f2fd4.netsolhost.co~nltds/images/publicationsIchapters.pdf.

In addition, ill the context of both the Willingham clemency process and the February 2004 judicial proceedings, powerful scientific evidence was presented that should have given both forums grave concern about the legitimacy of Mr. Willingham's conviction. There is no basis to believe that either forum appropriately considered that evidence, nor is there any assurance that it would do so in similar circumstances in the future,

The State's clemency proceedings and the State's habeas laws both warrant review by the State Legislature. Only through legislative action can the deficiencies in these laws be addressed.

VI. Conclusion

Mr. Willingham was executed in 2004 for an alleged crime that modem science

reveals may never have been committed. Significant deficiencies in the arson evidence used to convict Mr. Willingham were identified for the Governor's Office and the Courts before his execution, but no steps were taken to delay that execution. Since then, State officials have continued to resist attempts to clear Mr. Willingham's name. Petitioners seek a Court of Inquiry




to examine the facts surrounding these events so that the harm to Mr. Willingham's reputation

can be remedied.


Petitioners' Requests

Petitioners. relying on Mr. Willingham's and his survivors' rights under the

provisions of the Texas Constitution and the Texas Civil Practice and Remedies Code cited

above, respectfully ask this Court to do the following under Chapter 52 of the Texas Code of

Criminal Procedure:


Find, pursuant to Texas Code of Criminal Procedure Article 52.01(a), that

there is probable cause to believe that offenses against the laws of Texas

have been committed;


Enter into the minutes of the Court, pursuant to Article S2.01(b)(1), a

sworn affidavit stating the substantial facts establishing probable cause

that one or more offenses against the laws of Texas were committed;


File, pursuant to Article 52.01 (b)(2), a copy of the affidavit with the

District Clerk;


Declare that Mr. Willingham was wrongfully convicted, and that all legal

disabilities attaching to him or his survivors as a result ofthat conviction

are forever removed;


Request, pursuant to Article 52.01 (b)(2), the Presiding Judge of the

Administrative Judicial District to appoint ajudge to commence a Court of

Inquiry to investigate these matters further; and


Grant whatever other and further relief, at law or in equity, to which the


Petitioners may show themselves justly entitled.


Dated: San Antonio, Texas September 24,2010

Respectfull y submitted,


Cynthia E. Orr (SBOT: 15313350) Goldstein, Goldstein and Hilley 310 S. S1. Mary's Street

29th Floor Tower Life Building San Antonio, Texas 78205 (210) 852-2858 I ,:866) 682-9602 (210) 226-8367 fax



Mark White (SBOT: 21318000) (713) 906-6848

Barry Scheck (SBONY: NY-1634765) The Innocence Project

100 Fifth Avenue, 3rd Floor . New York, NY 10011

(212) 364-5391 (office) (212) 364-5341 (fax)






This is to certify that a true and correct copy ofthe above Petition was served via hand delivery to the following persons/and or persons in care of their office on the 24th day of September, 2010.

Office of the Governor, the State of Texas General Counsel

Caren Burch

General Counsel

State Capitol Bldg

1100 Congress, Room 2S.1 Austin, Texas 78701

Office of the State Prosecuting Attorney Jeffrey L. Van Hom

209 W. 14th St #202

Austin, Texas 78707

State Fire Marshal's Office G. Mike Davis

333 Guadalupe

Austin, Texas 78701

District Attorney's Office

Navarro County District Attorney's Office R. Lowell Thompson

300 W. 3rd Avenue, Suite 203 Corsicana, Texas 75110