You are on page 1of 15

Barry C. Scheck, Esq.

Peter J. Neufeld, Esq.

Maddy deLone, Esq.
Executive Director
Innocence Project
100 Fifth Avenue, 3rd Floor
New York, NY 10011

Tel 212.364.5340
Fax 212.364.5341

Material from Governor Perry’s Office and Board of Pardons

and Paroles, Obtained through Open Records Act Requests
The attached material was obtained by the Innocence Project through Open Records Act
requests to the Texas Governor’s Office and the Board of Pardons and Paroles earlier this year.
The Innocence Project requested all documents concerning a critical report on the Willingham
case that renowned arson expert Dr. Gerald Hurst wrote and disseminated to officials in both
offices in the days before Willingham’s execution in February 2004.

Documents from Governor Perry’s Office

• March 14, 2006, letter from Assistant General Counsel, responding to the Innocence
Project’s Open Records Act request.

• Fax cover sheet from Attorney General’s Office, forwarding the Hurst report without
comment to the Governor’s Office on February 17, 2004 (the day Willingham was
executed). Full copy of the Hurst report (as sent from the Attorney General’s Office to
the Governor’s Office), saying that the forensic analysis that convicted Willingham was
full of “many critical errors” and reaches “invalid” conclusions.

• Fax cover sheet and letter from Willingham’s attorney, Walter Reaves, to Governor Perry
(with notes from Governor’s Office staff on the first page of the letter) from February 13,

Documents from Board of Pardons and Paroles

• February 10, 2006, fax cover sheet with note from General Counsel, responding to the
Innocence Project’s Open Records Act request.

• Board minutes on the Willingham case.

• Letter from Clemency Administrator on February 13, 2004, to Willingham’s attorney,

• Reaves, denying a commutation or reprieve.

• Board vote sheet on the Willingham case.

Benjamin N. Cardozo School of Law, Yeshiva University

Innocence Project, Inc.
September 17, 2009
Page 2

Absent from Any Documents

The material obtained through these Open Records Act requests are notable for what
they do not include –for documents that do not exist. Neither office has any record of
anyone acknowledging the report’s contents, taking note of its significance, responding
to it, or calling particular attention to it within the government. This lack of action
indicates that in the days and hours before Willingham was executed, the Governor’s
Office and the Board of Pardons and Paroles ignored critical expert analysis – new
scientific information – that cast serious doubt on whether the Willingham fire was

P:\Letters\091709 willingham cover 2.doc

\\\\\ \\ \ \\\\\\\\ \\\ \\
" -- ,. ' --- .. ' . ~~~ -..


"i z \ :ii);e
I " o/ . PITNI:Y BO\t.!CS

\\ t ; 02 1;\ $ 05e
. 0004502043 '-.!AP 14 2006
7005 0390 0006 5889 9852 MAILED FROM ZlP CODE 78701


Au S TI N , T E X A S 7 8 7 1 1

Gabriel S. Oberfield , J. , M. SJ.

Research Analyst/Policy Department
Innocence Project
J 00 Fifth Avenue , 3I'd Floor
New York , NY JOOII

dr. ;11I1j..


March 14 2006


Gabriel S. Oberfield , J. , M. SJ.

Research Analyst/Policy Department
Innocence Project
100 Fifth Avenue , 3 Floor
New York, NY 10011

Dear Mr. Oberfield:

We received on March 1 , 2006 your request under the Public Information Act (the " PIA ) for the
following information:

confirm whether it possesses documents concerning the report that Dr. Gerald Hurst
disseminated to Texas officials in relation to Cameron Todd Willingham. (Please see the report
dated Feb. 13 , 2004 , which is attached. Mr. Willingham was aITested in Corsicana and
subsequently executed by the State on Feb. 17 , 2004 , after convictions of murder relating to the
deaths of his three children in a Dec. 23 , 1991 , fire that destroyed the Willinghams ' home.

Such documents many include notes , cOITespondence , or other communications to or from

anyone in your offce s employ, but should not be limited to such categories if another tye of
document would otherwise fall within this request' s purview.

We have compiled copies of the documents that are responsive to your request for information. Such
documents are enclosed.
Our policy is to waive all charges for 50 pages or less of responsive materials. Because we have located
less than 50 pages of responsive material , no costs will be incuITed.

POST OFFICE Box 12428 AUSTIN , TEXAS 78711 (512) 463- 2000 (VOICE)/DIA 7- 1 FOR RELAY SERVICES

If you have any questions or need additional information, you may contact me at the address below or at
(512) 463- 1788.

Assistant General Counsel

Responsive Documents

, Gena Bunn, Chief

(512) 93 1400
, Phone Number: (512) 936- 1600
Phone Number: Fax Number: (512) 320-8132
Fax Number: (512) 936-1280


PAGES: (w/cover sheet)

ATE: 1 11-1

. TO:

ca ifYOll have any questionsregardtngthis fax
( ) Origal wi be mailed
( J Please

SUJ;JCT: W\\\\N:

Confientaliiy Notke
Jfyou hae receied this faC$imiJe transmission in error, please note these documents may contain conjide
informtion that cannot be dis losed without violatig the criminal provisions of the Texas Open Records Act Qr
Texas Penal Code 39. 03.

8TAT:&. TX.
POST OnIcEBox: 12548 , AUS'JN. TEXAS 78711. 2548 TEL: (512)463- 2100 WWW. OAG,
An 8qrJa.l Sm.ploY1f'H'''' Oppt)rumc,y' BrrplQYbt' an llI. yol a

lO ' d ZS:9L POOZ Ll qaj Z8l8-0Z8-ZLS: j N38 A3NHOll jO 381jjO

Tral CoUr No, 24, 4670 (B)




The fi Invesgation report. of the Texas Sme Fire Marshal' Ofce In th case Is a
remarkle docment. On firs redinr, a I:ontempora ftre oriiin and caus
anly might weU wonder how anyone could make so I!any critIcal errol' tn
inrPreting the evidence. However, when the r port to looked at In the cOnt of
It tie and il'1\t of a few ke advances tht have been made In .the fire
invesgatIon fild In the last dozen year, It becomes obvious tht the report more
or ieSs simply reflect the shortomings In the stte of the art prior to the. beginnIng
of serious effort to intduce stadards and t( te old theories that bad previously
been accepte on fait.
WIn a few Weeks of the Issance of the Ar Marshal' s report the firs edon of
NFPA 921 a Guide tD Fir and Exloson Invesgadon wa published by
, N ona Fire Proteon Assodatlon. Th landmark publ tIn Wa deloped by
colte of oVer 30 weIreect
fire exer elect ti NFPA members. It
wa 3Sled throush a IJl"ces whih met an th rereent of an AS1
stdard. Since then, NFP A 921 has beme the de fact stnc of can! for the
ftre Invattion communit and Win appear In it S1 edfdon In earl 2004.
. will be sho later, most of the conclusons rehed by th Fire MarshaU would be
consder Invalid In liaht . of currnt knwledge.

The fooWing Is a 6s of key references con lnlng h1fonnatn which Is relevant to

th present case and which beame known onlY aftr the sUbject fie invegation:

1. NFPA 921, " A Guide to Fi and Exlosion Invesgatlon, " The National Fire
roecon Amcladoo, 1992, 1995, 1998 2001

2. ('Unconventonal Wlsom: The Leons of OakJnd " 'D Fire an Anon

mvegatr, Vol. 43, No. .4, June 1993.

. 3. "jhe lirne Stret Fire: Another Perspece,

II Th !' fl A.rson Invegator,
Vol. ' 43, No. , Sept 1992..

lO' lS : 9 !IDOl L L qa.: l8L8- 0l8- lLS: N38 A3N 011V .:0381.:.:0
(Cit a'fun-scale reproducton of a fire analogous to WlUlngham s in which a fire ,
thought to St
iri a hall by an accelerant Is shown Wi have resultd from flashover
In an adjacent room. Tes was nm by prosecution, who dropped arson case.

4. USFA Fire Bum Pattern Ten/ FA 178/ 7/97 Federal EmergncY'Manaiement

Agency/ Unitd State Fire Adrnlnisntlor, J 997

5. Flamble EI Comb1i"blc Liquid SpiltI Patt NI Report 6040, 1991

6. " Ki' s Fire Invesgation, II Fift Edition, Copygh 2002

The fi ..e

The fi scene strcture was a small w00d fre house. The aras relevant to Qrlgin
an cause determation were a bedro In the nortea come.r of e house,
connected via a dqorway In the west wall to a hallway whih ran nort and south.
The soutern end of the haway opened through th front (nort) door onto a
cement porch. The doOIY to the porch had an aluminum threold piau.

The be m contined preumably r ali, two crbs/ a b ba

and a , hea:tr.
The' rom ha on window in the Sout wall and two on the ' ea wan. Durg the
fi, exe ftmins had DCCUrr out though the widows and there was
exnsIve and varie fire damage to the floor as well as low bum on waIl.

The hevy damage to the floor exended out the bedroom door intO the haflway,
iNher It ran a short way to the . and a.n the way nort to th cement potd.

Ther was al perlp erallow charrng to the wals adjent to the nortern porton
of the , hallway and to the extrior face of the nort wall of the bedroom ad'fccent
to the porch.

The frnt door was I:onsed by fi/ a $creen door showed chanig under Its bae
and the wood under the aJlmnn thold was charrd.

In the bedrom there was a window with remnnt of craed glas present
Ti" Fi Mars&aJ $ C:oDcluoDS vs. Hew T_hnioey

In ht repo the invesgator for the Texa State fie Marshal' s Offce annced
that he "ad fond more du 20 indicators of incendiarim. The Indicatrs he
as, such were cl"ed gfas/ muldple ol1gins, br
ries on acernent pordi, low
bums on waUs in the Bedmlhl area , V.patterns on walls, charrg to e bae

SO' l:S : 9 L 1700l: L q Z:S L8- 0Z:S-Z: LS: xe.: N38 A3N 011V dO 381.:.:0
" "

m1nera spirits of kero

of a scren dopr, a posItie analyis for keroene (tl
bUmed wood under an alumintl threhold, tiles bumed fr l1 underneath,. and an
trailers, pour pattems; n and " puddle-
unnumbered occurrence of soafled "

Traller's. 13om Da and 1!ddclCl confnr A decade ae;o,

flashover fire scene and not various

Invesgaors would oftn tok at a post-

pattems of var
degre which appeared to be shaped nke
irguar pours
pattern as
I1qud. It farly common practce for the Ipv gator to cit thesebecae more
prof of the use of an iKcelerant With the advent of NfPA 921, It
rom or hallway produces
and more widely realind that post-flashover burning in a
frm bums bnagfed to. be
floor bum pattern which cannot be differentated
aus!d by liquid accelerants, Full scale teJ\
as reportd in referece 6 aboe,
hover burnng, even of relatiely short duradon, make It
showed tht post-l
Impole to identfy accelerant bums viy.
Thus it beomes 1mposslble to
vtua. ldenti accelernt pattm$ under theseconddons.

The subjec fi Included po-flashover bi'ng of consIderale duration asdoors.

evidence by the hallmaTk of flashover, flmes pQurni from windows and

Matlle Orl: The Fire MalSU reportd. mulple fi orlos. Actal

, multJple origins
muldple fire ol1g! (reate a powerfuf case for a('on- However
em only be demonsted when tWo or more ar s of ftre are COIplet!y
ftm one nother- In this pos-flashoverflre, aU c)fthe bum are were dealy
CQndgucius In th serle that they wer at lea Joied by obvous radladon and/or
conucton mechas. Th findin of muldple origi was Inapproprite even In
the conte of tl\e stte of the art In 1991.

PaUerD: C nt to the Fire Marshal' s report V-pattrn are only sometes

IndIca rs of the point of orl n of a fire and onl rarel Indcators of the use of a
UQ.d accelerant. U a fie Is snuffed out before D.uhover, a V- pattrn, such as one
abve a coffe maker may that the objec below the V strt
the fire
However, o e a ftre pas
the flashover stge, original pattms oft n beome
ovenvhem d and new V-pattrn wi form frm the burng of such common
itms as wooden door frames, cOJ.bu1e object on the floor, et. The effec of
pos- f\hover burning on the appearance and disappearance of V- pater parllels
e effec on floor pattrns.

Bam" wood under threshold: Th fire Ma1'hal a ileg tht the

chamne- of Qod uner the aluminum thhold was caus by lIqud accelerlt
burn. uner the thhold.
This phenomenon Is dearl imposible. UquId
accel rant ca no more burn under an , aluminum thesold than (an gre bum
slet even with a looe-fittng- lid. The charring of wood under a thl'l\old 1$

110 ' lS : 9 POOl L L q8j l8 LB-Ol8-l LS: xej N30 A3N 011 jO 381jjO
dOOlWays Is
common occurrnce In . post-flashover fires. Th thermal radiation at
exemely, high because of the tubulent mixng of hot fuet.rih gaes with
Incoming fresh aIr. ThIs radiation If often high enough to actally melt the threhold
(660 degrees C).
Ten years aso melted threholds or charred un(lerfng wood were routlely
clasified as acceler.anHnduced phenomena. Today, teXtok
It Is ' knowledge that

are caused by radiation. See "KIrk' s Fire Invesgaon

" Fift Edrton
the effct
Copylht 2002. ,

Ttie bur frm lermt nndemea: A .J1uld acCelerant wID not

, underneat a tile Qn the floor any more wn it wi under an aluminum theshold.

Bumlng underneath a tUe Is (:aused by th tile curfng under po-flhoer

lts lower surfce to Kercsene-lIke material wf bum
and thereby exng th heat.
onlY wfth great diffculty even on the top surfce of tile material. They tend to
self- exngUis leaving unbured Jcrosene behInd and have ntte effct on the

1997 ,
See reference S abve, FblI imable an Coustible Liquid Spiil

Crazed OIas: The idea tht cmed Is an indicatOr of the use of a liquid
acc:e/erat Is now claifed by the fire I"v gatlon as an " Old WI Tale. " Crd
Blas is by the rapid chUnnr of hot , 8fass by water used to exnguish th fie.
Th informtion was first publlhl! following the Investi
of a fil' stonn in
Oakand which destoyed many homes and later coified by laboratory II 1993.
See te.
reference 2 above, JlUnconventonal WIom: ihe Lens of Oaldand,

Brown rtis 0" (be cement ; The Identificaton' of ti preence of

acce!erant baed on brown rings on a cement floor Is baseleS spdon. A sreat
deal of brown rU and soluble fron sa
Is crted at fire saes. ' When the puddles
of fi hose water evpora they oftn leave bro
materil trpped In the suac
pore of cement. The preen'e of aI accelerat ca onl be esblIhed by
. chromatogJphic anlyis In the laboratory.

The ,ose elera Ana'l: The fi Marshal reportd th t Jcroene wa

foud In' a singl: sample of wood taen ftm bottm the doolWay adjacent to the
mlent porc What the analy actally reportd. ms " mlneralspil' of
keroene, " whch Is not the same' thlng as kerene. A bumed can of charoal
lir wa o .found ()1 the sam ooncrt. floor. thrcoailichter fluid belongs to
th cJ of Olds labeled " minerai $)II1ts of Ic rone. " Therefore, th prence of
this materlllS an exectd n'ltu occurrence In the wake of a ftre. Fluid from the
can would be d'lSersed an fload acl'$S the concrete by the actn of the
immisCile wate frm the ftre hoses.

SO' 2:S : 9 L POO2: L L q8j 2:8L8-02:8-2:LS: j N3D A3NHOIIV jO 331jjO

2!i4926552 WA TERRAVE ?ME Ell
02/13/2Be4 14:

SI8 th daY of Febary

Dr. Ciald HII

90 ' lS:9L POOl LL qaj l8L8-0l8- lLS: j N3D A3NHOll jO 3JljjO





- -t\.
Waco: 204 N, 6th St" Waco, Texas 76701 ' ..." I v L
West: 207 E. Oak , West , Texas 76691 ilng Address:
(254) 826-3713 Mail: wmreaves po8tconvjction. com!WU;-;: : c; P. O. Box 5S
, Fax (254) 826- 5572 Web Page: www.postconvictlon. com
mst;ex s 76
February 13, 2004

Governor Rick Perry

State Capitol
1400 Congress Ave
Q, Box 124
Austin, Texas 78711

Sent by facsimile transmission to: (512)-463- 1849

Re: Cameron Todd Willingham

Dear Govemor Perr,

f am writing this letter to you on behalf of Cameron Todd Wilingham. This letter
is a request for a reprieve. Currently, Mr. Wilingham is scheduled for execution on
February 17 2004.

I havereprese nted Mr. Willingham since his direct appeals were exhausted.
. As
with many capital cases, the defense he received was, far from perfect. This is
especially so for his representation on appeal , which was a main focus of the post
conviction proceedings. Mr. Willingham s lawyer on appeal neglected to raise a number
of impprtant issues. Had those iss ues been raised, I do not think we would be in this
position. However, we are, and that has been' through the courts, Even,
recognized the lack of quality of the briefs filed for him, but was not ableMr, Willngham
to obtain any
assistance , even though he asked for permission to represent himself,

I realize these issues have been through the courts, and are not something that
you wish to review again. However, there are some things that have not been through
the courts, that I think should be considered. Ever since I started reviewing the case
have had serious questions about Mr, Wnlingham s guilt. There are a number of , I

circumstances which pointed in another direction. The evidence tying him to

the crime
was almost entirely circumstantial. The evidence could have led as easily elsewhere,
mainly to his wife.
One of the most critical pieces of evidence at trial came from an inmate witness.
I know you are fully aware of the problE;ms with that type of witness.
think ,there were
even mo e problems with this witness than normal. Everyone I have Italked with agrees

Board Certified in Criminal Law. Texas Board of Legal Specialization

/13/ lq; l L::)qtS WAL 11:i'i'I:AVI::: rA\:1:

that he is not someone that was credible or worthy of belief. Nevertheless, he got on
the witness stand and testified to admissions made by Mr. Willngham. We have been
able to do little with that. I think that is an issue that raises serious questions about the
criminal justice system in death penalty cases , I do not believe it is enough to merely
present evidence to a jury, and leave the deciSion to them. Instead I believe
prosecutor s have an obligation , If not ethically, at least morally, to ensure that there are
no doubts about any of the evidence they present. I do not think you can say the
avidencefrom Mr. Webb was of that type. Nevertheless, as with many cases, the
evidence was put before the jury, and presumably, they gave it some weight.

The other evidence that did not come before the jury, was the fact ,that there was
an insurance policy on the children, However, Mr. Wilingham was ' not the beneficiary.
Instead, it was his wife, He was not even aware of the policy; he first became aware
after he had been arrested for this offense, Almost immediately after his arrest, she
cashed in on the policy and went out and purchased a new truck. Needless to say, her
actions were not that of a grieving mother, There is also additional evidence leading to
her. After the trial, a witness came forward, and indicated she saw Mrs, Willngham,
well as three other individuals at the house that moming The information was
extremely exculpatory, and led to the filing of a motion fot new trial. The witness
subsequently' recanted, and claimed that she did not see what she claimed , and had
fabricated the story. However" it is curious that at least one of the persons she names
was connected to Mrs. Willngham. There were messages left on the answering
machine by that person, and I do not believe this persn had any way of knowing that.

OnlY recently I have discovered that the fire was probably not set by anyone. Dr.
Gerald Hurst has offered his assistance in this case, and is submitting an affdavit which
wil be filed with the Courts. Dr, Hurst' s opinion is that the fire was not intentionally set.
He has rebutted almost all ofthe claims made by the fire marshal. Most are either not
supported by the science, or are no longer generally accepted principals. Dr. Hurst has
been involved in several other cases, and successfully obtained the release of persons
who were convicted of crimes almost identical to this one, This is something we have
just come across, and I think it clearly deserves further inquiry.

There is nothing more I would like than to be able to present you with evidence
of actual innocenae, I think we are close with Dr. Hurst, but he needs more time to
conduct a complete investigation: I think this is something that merits serious
consideration. The death penalty, whether you agree with it or not, should be reserved
for the most serious crimes. More importantly, ' it should be reserved for, thosecrirnes
about which there is no doubt about the guilt of the person, This is not an area where
we should have to guess , or entertain concerns or doubts. If there are any do bts, I
think we have an obligation as a society to prevent the execution. We are aU aware of
, the numerous cases OVfJr the last few years where persons have been exonerated
years after the crime, Many times it takes years for such evidence to develop- An
execution destroys any chance that person may ever have at establishing their
innocense. We already know that a number of people who have been exonerated were

on death row, We have no idea whether there were any persons who have been
executed, and who could have established their. Obviously, once the execution occurs
there is no motivation to pursue , an investigation.

We are currently stil working on attempting to obtain evidence of innocence, and

I believe have come extremely close. I feel that we are closer than aver, which is the
reason for asking for this reprieve; I believe there are stil serious questions left on this
case, that should be pursued. For that reason , I am requesting a reprieve to allow us
the opportunity to do that. We do have an investigator who has volunteered and agreed
to do that , and has started working on the case. We also have obtained the assistance
of Dr. Hurst , and there is no tellng how many others may offer assistance when they
learn about the case.
I trust that you wil give this matter your full and thoughtful consideration, If there
, is any additional information I can provide , I would be more that happy to do so,

Thank you for your time given in this matter.

Very truly yours,

R9aV9 ' Jr.

ULI I LUU i:;J'fOi:O;:;: ( i: WAL I 1:t't'I:AVI:::
-- '" -"" .. "" .. PAGE 01

mrevll offbo tQm1 cIQ ts n 11 lIat 10 you.
..""" M
we ..

(254) 826. 3713 WALTERM"REAVE8, JR.
Fax ('54) 826- 5572 Waco: 204 N. 6th
St., Waco Tex 76701 Maig Address:
West: 207 E. Oak Wert Texa 76691 1'. 0, Box 55
Wes Texa 76691



FAX#: 5/Gl-.4/3- ;g4


Document Forwarded:
Number .of Pages Oncluding this Page):

BOar Cered in
Cr Law . Tex Board ofLega SJIn