IN THE 299TH DISTRICT COURT IN AND FOR TRAVIS COUNTY, TEXAS

IN RE: CAMERON TODD WILLINGHAM

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NO. D-1-DC 10-100069

OPINION AND ORDER OF THE COURT On September 24, 2010, the Petitioners, EUGENIA WILLINGHAM and PATRICIA WILLINGHAM COX, the surviving family of CAMERON TODD WILLINGHAM, filed a Petition to Convene a Court of Inquiry and for a Declaration to Remedy Injury to Willingham’s Reputation Under the Texas Constitution. Willingham had been convicted of and executed for murdering his three daughters. The Petitioners requested a hearing wherein evidence could be offered to prove that Willingham was wrongfully executed. On October 14, 2010, this Court conducted a hearing (hereafter “the hearing”) and received documentary evidence and sworn testimony, presented by Gerald H. Goldstein of Goldstein, Goldstein & Hilley; Barry Scheck of the Innocence Project, appearing pro hac vice; and former Texas Governor, the Honorable Mark White. 1 After careful consideration of that evidence and the argument of counsel, the Court now enters the following findings, opinions, and orders: I. SUMMARY

This Court orders the exoneration of Cameron Todd Willingham for murdering his three daughters. In light of the overwhelming, credible, and reliable evidence presented by the Petitioners, this Court holds that the State of Texas wrongfully executed Cameron Todd Willingham. Weighing the evidence presented by the Petitioners in favor of Willingham’s exoneration against the evidence produced at his trial, this Court concludes that the Petitioners have shown by clear and convincing evidence that no reasonable juror would have convicted Willingham in light of the newly discovered evidence. In 2004, Willingham provided the Court of Criminal Appeals and Governor Rick Perry with exonerating evidence. That evidence was ignored, and Willingham was executed.                                                         
current Navarro County District Attorney, Hon. R. Lowell Thompson, declined this Court’s invitation to attend the hearing and to offer any evidence he wished for, against, or on any issue(s) presented by the Petitioners. Instead, Thompson left the courtroom and requested a stay of proceedings from the Third Court of Appeals. A stay was issued after the hearing concluded. The stay remained in effect until today. Additionally, this Court invited The Governor, State Prosecuting Attorney, State Fire Marshall, and Stacy Kuykendall, Willingham’s ex-wife and mother of the three decedents, to attend the hearing and to offer evidence for, against, or on any issue(s) presented by the Petitioners. Each declined the invitation. 
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The State of Texas has a duty to ensure that such a tragedy never happens again. To this end, the Legislature is encouraged to enact comprehensive legislation to ensure that an innocent human life is never again taken in the name of the Citizens of Texas. Cameron Todd Willingham suffered the ultimate indignity of being put to death for a crime that he did not commit; that indignity is magnified by the fact that the crime for which he was wrongfully executed was the justly reviled crime of filicide. No court of law can bring back the life of Cameron Todd Willingham. However, we can restore his reputation and work to ensure that future injustices of this magnitude will never befall others. II. JURISDICTIONAL STATEMENT

The Texas Legislature has wisely recognized that our criminal justice system is not perfect, and sometimes innocent men and women are convicted of noncapital crimes and suffer the loss of their liberty. In an attempt to remedy those miscarriages of justice, the Legislature enacted the Tim Cole Act. See generally Tex. Civ. Prac. & Rem. Code, Title 5, Chap. 103.2 However, perhaps in the hope that an innocent person would never be executed, the Legislature has not enacted a similar statutory scheme to address a claim of wrongful execution. The fact that there is not a statute or a rule providing a remedy for wrongful executions does not mean the Petitioners are without a forum. It is axiomatic that “Justice is to be denied no one who seeks it honestly from a court of law.” The framers of the Texas Constitution recognized that situations would arise where an individual’s reputation would be harmed and that the courts must be open to provide a remedy. Specifically, the Petitioners rely upon Article 1, Section 13 of the Texas Constitution which states: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Texas Constitution, art. 1, § 13. And because there is no statute or rule covering this type of occurrence, Article 5, Section 8 of our Constitution declares that district courts are the appropriate forum to hear such claims. District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body. District Court judges shall have the power to issue writs necessary to enforce their jurisdiction. Texas Constitution, art. V, § 8. Consequently, this Court is constitutionally vested with the jurisdiction to consider the claims presented in this petition and, if such claims are valid, to fashion an appropriate remedy.                                                         
act is named in honor of Tim Cole, who was wrongfully convicted of a noncapital crime and died in prison. He was exonerated by this Court on April 7, 2009. Because there was no statutory scheme available for a deceased person to seek to have his reputation restored, Mr. Cole’s survivors employed Article 1, Section 13 of the Texas Constitution. This exoneration was recognized by Governor Rick Perry, who subsequently granted Cole Texas’ first (and, to date, only) posthumous pardon. Unquestionably, the Petitioners are entitled to rely upon the same constitutional provision. 
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The petition also seeks to invoke this Court’s jurisdiction under Article 52 of the Texas Code of Criminal Procedure whereby this Court would act as a magistrate to determine whether anyone at the Texas Fire Marshal’s office committed the crime of official oppression as alleged in the petition. For the reasons stated infra at n.8, this Court specifically declines to act under Article 52. III. FINDINGS OF FACT A. The Fire

On December 23, 1991, the Willingham residence in Corsicana, Texas, caught fire. Willingham and his three daughters, Amber, Kameron, and Karmon, were in the house at the time of the fire. Willingham received minor injuries, but his three daughters perished. On December 24, 1991, Assistant Fire Chief Douglas Fogg performed an initial inspection and investigation of the fire and filed a report. Three days later, on December 27, 1991, Manuel Vasquez, an investigator from the State Fire Marshal’s Office, conducted a separate inspection and investigation, and filed a separate report. Both reports classified the fire as arson, and a criminal investigation ensued. On December 31, 1991, investigators questioned Willingham. On January 8, 1992, Willingham was arrested and charged with the murders of his three daughters. B. The Trial

On August 18, 1992, Willingham’s trial began. The State’s case rested upon two components: (1) the arson evidence testimony of Fogg and Vasquez; and (2) the testimony of Johnny Everett Webb, an inmate confined in the Navarro County jail with Willingham. The contents and accuracy of the testimony of each will be discussed in detail in the subsequent sections. The jury convicted Willingham of capital murder and sentenced him to death. C. The Appeals

Over the course of the next decade, Willingham exhausted every available appellate/postconviction remedy but was unable to attain relief. In November of 2003, the United States Supreme Court denied certiorari. Shortly thereafter, Willingham’s execution was set for February 17, 2004. On February 13, 2004, Willingham filed a subsequent writ of habeas corpus with the Texas Court of Criminal Appeals. That writ relied upon the “Hurst Report,” discussed infra, as new forensic evidence demonstrating actual innocence. The Court of Criminal Appeals refused to consider the claim. D. Clemency Process

On January 26, 2004, Willingham applied to the Texas Board of Pardons and Paroles (“Board”) for commutation of his sentence or, in the alternative, for a 90-day reprieve from

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execution. On February 13, 2004, the Board informed Willingham that it would not recommend either form of clemency.3 Two weeks before the scheduled execution and while the matter was under consideration by the Board, Petitioner Patricia Willingham Cox contacted Dr. Gerald Hurst, an arson expert who agreed to review Willingham’s case. Dr. Hurst holds a doctorate in chemistry from Cambridge University, has worked as a fire and explosives expert for nearly thirty years, and has testified as an expert witness in numerous arson cases. On February 13, 2004, Dr. Hurst issued a report (“Hurst Report”) concluding that there was no evidence to suggest that the fire was arson. After being denied relief by the Board, Willingham turned to the Governor’s Office. On February 13, 2004, Willingham’s writ attorney, Walter Reaves, Jr., requested a 30-day reprieve from execution. The Governor may grant a 30-day reprieve from execution without the recommendation of the Board. The request relied heavily on Dr. Hurst; specifically the letter stated: 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 affidavit which will be filed with the Courts. Dr. Hurst’s opinion is that the fire was not intentionally set. He has rebutted almost all of the claims made by the fire marshal. Most are either not supported by the science, or are no longer generally accepted principles. 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 I have just come across, and I think it clearly deserves further inquiry. … 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 those crimes 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 doubts, I think we have an obligation to society to prevent the execution. [Exhibit 20, Letter of Mr. Walter Reaves, Jr., faxed to Governor’s Office February 13, 2004.] The Governor’s office received the Hurst Report at 4:52 PM on February 17, 2004. In the Hurst Report, Dr. Hurst urged Governor Perry to grant the reprieve in order to reconsider the accuracy of the forensic evidence. There is no evidence if, or to what extent, anyone in the Governor’s Office reviewed the Hurst Report. Governor Rick Perry denied a reprieve. At 6:20 PM on February 17, 2004, Cameron Todd Willingham was executed.

                                                        
3  The Board’s vote barred these two forms of relief, as the Board must recommend a commutation of the sentence or a 90-day reprieve in order for the Governor to grant either.

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E.

Further Investigation

In 2006, the Innocence Project commissioned the Arson Review Committee to assemble a panel of fire scientists to review the reports of Fogg and Vasquez. As detailed below, the Arson Review Committee echoed the findings in the Hurst Report, unanimously concluding that every indicator relied upon has since been scientifically proven to be invalid. The Arson Review Committee was chaired by John J. Lentini, a certified investigator and chemist with more than thirty years of experience in forensic and fire investigation. Lentini is certified by the International Association of Arson Investigators (“IAAI”) and the National Association of Fire Investigators (“NAFI”). He is also a certified Diplomate of the American Board of Criminalistics, with a specialty in fire debris analysis. He is the former chair of the IAAI Forensic Science Committee and current member of the National Fire Protection Association (“NFPA”) Technical Committee 921 on Fire Investigations. In August 2008, the Texas Forensic Science Commission agreed to conduct a review of the arson evidence in the Willingham case, and in December 2009, the Commission appointed Dr. Craig Beyler to investigate the case. Dr. Beyler is the current Chairman of the International Association for Fire Safety Science and a member of the NFPA and Society of Fire Protection Engineers. He holds a doctorate from Harvard University, a master’s degree in mechanical engineering from Cornell University, and a master’s degree in Fire Safety Engineering from the University of Edinburgh. Dr. Beyler concurred with the Hurst Report and the Arson Review Committee Report, finding that there was no evidence of arson. Additionally, Mark Goodson and Dr. John D. DeHaan, experts in arson science, conducted independent investigations, and each reached conclusions that mirror those of the Hurst Report, Arson Review Commission, and Beyler. Goodson, an engineer and fire investigator expert, holds a B.S. in electrical engineering from Texas A&M University and has served as a court-appointed special master. He also is a fellow at the American Academy of Forensic Sciences and a member of the IAAI and NFPA. In a letter to the Texas Forensic Science Commission, Goodson commended the Beyler Report as “excellent” and affirmed that its findings were accurate. Dr. DeHaan is an NAFI-certified fire and arson investigator, an IAAI-certified fire investigator, and a Fellow of the American Board of Criminalistics with a fire debris specialty. Dr. DeHaan holds a B.S. in physics from the University of Illinois and a doctorate from the University of Strathclyde in Glasgow, Scotland. He has more than thirty-five years of forensic experience with fires and explosives, has testified as an expert witness in more than fifty cases, and has authored the widely read textbook Kirk’s Fire Investigation. Dr. DeHaan reviewed Dr. Beyler’s report, Vasquez’s report, certain trial testimony and other materials, and concluded “the original investigators in the Willingham case relied on investigative methods and indicators that have been shown to be unreliable.” Both Dr. Hurst and John Lentini testified at the hearing. Their reports, along with the reports detailed above, were admitted as exhibits. F. The Arson “Evidence”—Then and Now

The central evidence relied upon at Willingham’s trial was the testimony of Fire Marshal Vasquez and Assistant Fire Chief Fogg, the investigators who prepared the initial reports of the 5

fire. Their testimony, in conjunction with that of Johnny Everett Webb, laid the foundation for Willingham’s conviction. Both Vasquez and Fogg relied upon so-called indicators of arson, visual clues they believed arson fires left in their wake. Some of these indicators had already been discredited by 1991; others, however, were still considered scientifically sound by many fire investigators. Today, each indicator has been subsequently refuted. No less than nine experts have condemned Vasquez and Fogg’s conclusion that the Willingham fire was arson. Specifically, the Arson Review Committee Report concludes that “each and every one of the indicators relied upon have since been scientifically proven to be invalid.” At the hearing, Lentini testified “all evidence is consistent with an accidental fire.” Dr. Hurst opined that the fire was most likely caused by a space heater or faulty electrical wiring. He explained: I would put the faulty wiring ahead of the space heater. This was an unusual room. Normally you have wires in the wall and they are protected. This had jury rigged wiring, all the wiring in the room.4 On the exterior of the walls, over doors, and it was an accident waiting to happen. So it could have been either one of those things, but I certainly don’t know which it was. But the wiring could have borne more scrutiny; if every inch of that wiring had been checked, they might have found the cause of the fire.

The following are all of the indicators of arson testified to at Willingham’s trial and the evidence presented by the Petitioners that refutes each indicator. i. a. Floor Patterns and Puddle Patterns

Testimony Relied Upon at Trial

Vasquez testified extensively regarding the existence of what he termed “floor patterns,” “pour patterns,” and “puddle patterns” in the remains of the Willingham home. Vasquez explained to the jury that from the patterns left on the floor by the fire he could draw conclusions about the origin and behavior of the fire. Vasquez asserted that pour patterns indicate the presence of a liquid accelerant and that a liquid covered much of the children’s bedroom. He testified that there were pour patterns in the hallway outside of the children’s bedroom and that the pouring was done with intent to block the exit. He also testified that the floor patterns demonstrated that the fire had spread into the house, and not from the house out to the porch. Fogg also testified that the floor damage in the Willingham home was “consistent with liquid pour patterns.”

                                                        
4 Jury rigging refers to makeshift repairs or temporary contrivances, made with only the tools and materials that happen to be on hand.

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b.

Subsequent Refutation

Vasquez omitted a very important fact from his analysis: all samples from the Willingham home, except for one discussed below, including samples from the children’s bedroom, tested negative for the presence of accelerants. Moreover, these types of pour patterns are not indicative of the origins or behavior of fire, nor do they indicate the presence of a liquid accelerant. The testimony given by Vasquez and Fogg has been thoroughly refuted. Lentini, for example, declared that the reliability of conclusions drawn from pour patterns are “completely without merit.” Similarly, the Hurst Report states that floor patterns and puddle configurations are not reliable indicators of the presence of an accelerant in fully involved compartment fires— fires that are contained within an enclosed space, such as a house—and that it is “impossible” to visually identify accelerant patterns. The Arson Review Committee Report reiterates that fully involved compartment fires create the appearance of pour patterns such as those found in the Willingham home. Finally, the Beyler Report conclusively states: “At this time, the fire science and fire investigation communities are clear that floor patterns cannot be reliably used as an arson indicator in fully developed fires.” ii. a. Damage at Front Door Threshold

Testimony Relied Upon at Trial

Vasquez and Fogg both testified that the burned wood at the front door threshold and the melted aluminum threshold plate were caused by a liquid accelerant flowing under the threshold and burning there. Vasquez explained that wood fires burn at 800 degrees Fahrenheit without an accelerant, and that an accelerant would be necessary to reach aluminum’s 1200-degree melting point. b. Subsequent Refutation

This testimony is incorrect for many reasons. First, as Lentini testified, Vasquez was “just wrong” that wood fires burn at 800 degrees. Moreover, “temperature of a well-ventilated wood fire is the same as a temperature of a well-ventilated gasoline fire.” Lentini explained that “[m]elted aluminum is a common post-fire artifact” and that Vasquez was wrong to conclude that the melted aluminum “was caused by an accelerant burning underneath.” Fire cannot burn without oxygen, and the lack of oxygen underneath the threshold would completely preclude the possibility of an accelerant burning there. The Hurst Report similarly states that the charring of the wood under the threshold is a common occurrence because the inflow of oxygen-rich air under the doorway creates extremely high temperatures that can melt the aluminum threshold. The Arson Review Committee Report explains that the claim that an accelerated fire burns “hotter” than an unaccelerated fire is false; unaccelerated fires can reach temperatures sufficient to burn aluminum. Furthermore, the Report explains that it is impossible for an accelerant to burn under a threshold due to the absence of oxygen there. Finally, the Beyler Report states that “[t]he idea that the intensity or temperature of the fire is an indicator of accelerant use is not accepted by . . . fire science literature.”

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iii. a.

Brown Stains on the Porch

Testimony Relied Upon at Trial

Vasquez and Fogg both testified that the brown stains discovered on the front porch of the Willingham home were further indicators of the presence of an accelerant.

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Subsequent Refutation

Lentini explained at the hearing that brown stains “do not establish the presence of accelerant,” The Hurst Report states that not only is using brown stains as evidence of the use of an accelerant “baseless speculation,” but also that the presence of an accelerant can only be detected by laboratory testing. The Arson Review Committee Report and the Beyler Report similarly state that no scientific evidence supports the claim that brown stains indicate the presence of an accelerant. iv. a. Testimony Relied Upon at Trial V Patterns

Vasquez testified that “V patterns” left by fires indicate places where the fire originated, which he referred to as “points of origin” of the fire, and that he discovered such V patterns in the Willingham home. b. Subsequent Refutation

Lentini testified that V patterns are unreliable as indicators of points of origin, as they mean nothing “once a fire gets involved.” Additionally, as noted in the Hurst Report, V patterns are “only sometimes indicators of a point of origin and only rarely indicators of the use of a liquid accelerant;” they are therefore unreliable as indicators of points of origin. The Arson Review Committee Report affirms that V patterns are routinely observed in compartment fires such as this and that they provide no information as to time of ignition; thus, they cannot be used as an indicator of the origin of the fire. The Beyler Report concludes that the V pattern in the hallway “resulted from burning in the front of the hallway and would be present whether the hallway was an origin or not.” v. a. Multiple Points of Origin

Testimony Relied Upon at Trial

Vasquez testified that he could detect multiple points of origin, and that these points of origin indicate that a fire has been intentionally set. He testified that the children’s bedroom was a point of origin, and there were additional points of origin to the fire in the hallway and on the porch.

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b.

Subsequent Refutation

That position is simply incorrect in the context of the Willingham fire. Lentini testified at the hearing: “There is no way to conclude there was more than one origin based on this evidence.” The Hurst Report states that multiple points of origin can only be demonstrated when two or more areas of the fire are completely isolated. In the Willingham fire, all the burned areas were clearly contiguous because they were joined by obvious radiation or conduction mechanisms. Therefore, the finding of multiple points of origin is “inappropriate.” The Arson Review Committee Report affirms that all the points of origin were “contiguous.” vi. a. Testimony Relied Upon at Trial Low-char Burning

Vasquez cited several examples of what he termed “low-char” burning in the remains of the Willingham house. Low-char burning is simply burning that occurs close to the ground. He identified a charred baseboard along the porch and low-char burning in the hallway. He explained that low-char burning is an indicator of arson because fire does not burn low to the ground unless an accelerator is present. b. Subsequent Refutation

The Arson Review Committee Report states that low-char burning proves nothing with respect to the origin and cause of the fire. In a fully involved compartment fire burning can be expected “on all combustible surfaces.” At the hearing, Lentini reiterated that in a fully involved compartment fire burning can be expected everywhere, including close to the ground.

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Temperatures Higher at Floor Level Than at Ceiling Level

Testimony Relied Upon at Trial

Vasquez testified that the damage to the Willingham home illustrates that the temperatures during the fire were higher at the floor level than at the ceiling level. He testified that this difference was due to the presence of an accelerant. He explained to the jury that fire always goes up, implying that only an accelerant can cause the higher floor temperatures. b. Subsequent Refutation

As stated in the previous section, however, burning can be expected on all combustible surfaces in a fully involved compartment fire. Lentini testified that, contrary to Vasquez’s assertion, “fire only goes up until it hits the ceiling.” The Arson Review Committee Report states that “[it] is impossible during a compartment fire for the temperatures to be greater at the floor than at the ceiling” and that “one would expect that the flooring materials would be more heavily damaged than the less combustible walls and ceilings.”

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viii. a.

Auto-ventilation of the Fire

Testimony Relied Upon at Trial

Vasquez testified to the jury that the fact that the Willingham home fire was “autoventilated”—ventilated by a window broken as a result of the fire in the Willingham home—was an indicator of arson. b. Subsequent Refutation

This testimony is flawed for two very important reasons. First, as Lentini testified, no one in the scientific community believes that “auto-ventilation” and its accompanying broken windows is evidence of an intentionally set fire. Window breakage, he testified, is “consistent with unaccelerated compartment fires.” The Arson Review Committee Report explained that glass exposed to fire naturally breaks due to the temperature differential between the exposed part of the glass and the part protected by the window frame. The Beyler report confirms that Vasquez’s theory of auto-ventilation as an indicator of arson is “inconsistent with modern fire science.” Moreover, this argument fails on a factual level; Willingham, himself, broke the windows to his house when he was attempting to reenter the home to save his children. ix. a. Testimony Relied Upon at Trial Crazed Glass

Vasquez noted in his report the presence of “crazed glass”—glass that has melted and hardened in unusual shapes—found on the porch after the fire. He opined that crazed glass is an indicator of a fast and hot fire due to the use of an accelerant. b. Subsequent Refutation

The theory that crazed glass is an indicator of a use of an accelerant has no basis in science and is consistently referred to as an “Old Wives’ Tale.” Dr. Lentini’s testimony at the hearing, the Hurst Report, the Arson Review Committee Report, and the Beyler Report all state that crazed glass is not caused by high temperatures or rapid fire; rather, it is always caused by a rapidly cooling hot glass when water is used to extinguish a fire. x. a. Tiles Burned From Underneath

Testimony Relied Upon at Trial

Vasquez testified to the presence of tiles in the Willingham home that appeared to have been burned underneath and that this indicates the presence of an accelerant. b. Subsequent Refutation

Lentini testified that it is “impossible” for accelerant to burn underneath tile in the same way that it is impossible for accelerant to burn underneath a threshold. The Hurst Report states that it is not possible for a liquid accelerant to burn underneath a tile and that such burning “is caused by the tile curling under post-flashover radiation and thereby exposing its lower surface 10

to heat.” The Beyler report similarly states that vinyl tile edge curling can occur in the absence of accelerants due to radiant heat. xi. a. Burned Floors Underneath the Bed

Testimony Relied Upon at Trial

Vasquez testified that the discovery of bedsprings burned from underneath and burned floors underneath the bed indicate the presence of an accelerant. The implication is that a fire cannot burn underneath furniture unless there is an accelerant to direct it there. b. Subsequent Refutation

In a fully involved compartment fire, all surfaces will burn, and therefore burned springs and burning underneath the bed are part of the natural progression of such a fire, as explained by the Arson Review Committee Report. Furthermore, the pooling underneath the bed could have been caused by melted materials such as polyurethane foam commonly found in beds. Finally, as previously noted, all samples taken from the children’s bedroom tested negative for accelerants. At the hearing, Lentini explained that in a fully involved compartment fire: [e]very exposed combustible surface in the room catches fire almost simultaneously, and in doing so, it burns the floor and it will burn the floor in patters that look remarkably like patterns produced by accelerant or what we think accelerant should look like . . . . [Such a fire] will light the whole floor on fire, including underneath tables and chairs. xii. a. Presence of Kerosene

Testimony Relied Upon at Trial

Vasquez reported that kerosene was found in a single sample of wood taken from the doorway adjacent to the cement porch. b. Subsequent Refutation

Lentini explained that “[i]n terms of mineral spirits, Fire Marshal Vasquez misinterpreted that terminology to think that kerosene had been found.” In fact, the analyst reported “mineral spirits of kerosene” which, the Hurst Report explains, is not the same thing as kerosene. A can of charcoal lighter fluid was found on the porch which belongs to the same class of liquids labeled “mineral spirits of kerosene.” The Report concludes that “the presence of this material is an expected natural occurrence in the wake of a fire.” Moreover, there had been a charcoal grill on the front porch at the time of the fire. Thus, the only part of the entire Willingham home that tested positive for kerosene was exactly where kerosene would be expected: where the charcoal lighter fluid was found on the front porch. G. The Testimony of Johnny Everett Webb

Other than the testimony of Vasquez and Fogg, the only evidence of Willingham’s guilt was the testimony of Johnny Everett Webb. Webb was an inmate in the Navarro County jail 11

with Willingham, who was awaiting trial. At the time of trial, Webb was awaiting transfer to prison after being sentenced for separate convictions for robbery and burglary. Webb admitted to a substantial criminal history, including additional convictions for car theft, delivery of marijuana, and forgery. According to Webb, Willingham confessed to killing his children because his wife had injured or killed one of the children which caused Willingham to panic and burn the house down to cover the abuse. Moreover, Webb testified that Willingham admitted to burning one of the children on the arm and forehead to make it look like the child had been playing with fire. Webb asserted that Willingham had squirted lighter fluid around the walls and floor before setting the fire. Webb specified that Willingham stated that he had poured lighter fluid in the children’s room in an “X pattern” and that he had moved one of the children to a different room before starting the fire. Webb further testified that he had not been promised anything by the State for testifying and that Willingham and others had threatened him for offering to testify. Willingham’s trial counsel highlighted the inconsistencies in Webb’s testimony. In particular, the defense focused on the fact that Webb was not Willingham’s cellmate and that the physical location where Webb said the conversation took place, which was near a speaker that a guard could listen in on, was unusual. The defense also highlighted Webb’s history of mental illness and drug and alcohol abuse, as well as the fact that he could not remember whether he had in fact committed the crimes underlying his most recent convictions either at the time of Willingham’s trial or at the time he (Webb) pled guilty. After Willingham’s conviction, but before his execution, Webb recanted his testimony. In a handwritten letter to the Navarro County District Attorney’s Office dated March 30, 2000, Webb wrote that he “was forsed [sic] to testify against Mr. Willingham by the D.A.s [sic] office and other officials. I was made to lie. Mr. Willingham is innocent of all charges.”5 The Petitioners have provided affidavits by handwriting experts indicating that in their professional opinions the recantation letter was written by Webb based on comparisons with known samples of Webb’s writing. Moreover, Webb also indicated in a later court filing that the prosecutors promised him certain benefits in exchange for cooperating. In a civil suit requesting a protective order, Webb indicated that he was owed the protective order because he had a contractual arrangement with the prosecutors to testify against Willingham. As Webb put it in his request: [T]he state offered me certain benefits in exchange for my testimony, which resulted in sending a man to death row. This resulted in a murder contract being placed on my head.                                                         
is a notation in the upper left hand corner of the letter, dated April 3, 2000, indicating that it was given to Hon. John H. Jackson, Judge of the 13th District Court where Willingham’s case was tried. Prior to his ascension to the bench, Jackson was the First Assistant District Attorney of Navarro County and the lead prosecutor at Willingham’s trial. In that capacity, Jackson conducted the State’s examination of Webb, who was the first witness to testify in the case. Neither the District Attorney’s Office nor Judge Jackson took any action on the letter, nor did they disclose the letter to Willingham’s writ attorney.
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Because I kept my end of the promise, the state is bound to uphold theirs' until my release from incarceration. Since making his initial statement at trial, Webb has spent much time and effort attempting to recant his testimony. IV. STANDARD OF REVIEW

To determine whether Willingham should be exonerated, this Court will consider the standards of review employed by Texas courts in evaluating claims of actual innocence. Texas recognizes two types of innocence claims. The first, referred to as a Schlup-type claim is predicated upon both a claim on actual innocence and a concurrent constitutional error occurring during the trial. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The second, known as Herrera-type claims, are predicated only on the innocence of the petitioner, as demonstrated by evidence discovered or made available since trial. These are known as “freestanding” actual innocence claims, and they require a higher standard of proof. See Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002). Since Petitioners’ claim is based on forensic analysis not available at the trial and Webb’s subsequent recantation, as opposed to constitutional defects in the trial itself, this Court will consider this as a free-standing innocence claim and employ the Herrera standard. Petitioners presenting Herrera-type claims must offer evidence that constitutes affirmative evidence of the applicant’s innocence. Franklin, 72 S.W.3d at 678. The Court of Criminal Appeals has suggested that appropriate evidence in this regard may include “exculpatory scientific evidence, trustworthy eyewitness accounts, and critical physical evidence” in addition to “trustworthy witness recantations.” Id. at n.7. The reviewing court “should make a case-by-case determination about the reliability of the newly discovered evidence under the circumstances. The court should then weigh the evidence in favor of the [petitioner] against the evidence of his guilt.” Ex parte Elizondo, 947 S.W.2d 202, 207 (Tex. Crim. App. 1996) (quoting Herrera v. Collins, 506 U.S. 390, 443 (1993) (Blackmun, J., dissenting)). “[T]he stronger the evidence of the [petitioner’s] guilt, the more persuasive the newly discovered evidence must be.” Id. Ultimately, for a petitioner to prevail, he must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the newly discovered evidence. Elizondo, 947 S.W.2d at 209. V. WILLINGHAM’S FREE-STANDING INNOCENCE CLAIM A. Cameron Todd Willingham was Wrongfully Executed Given the compelling and overwhelming evidence presented by the Petitioners, it is clear that the State of Texas wrongfully executed Cameron Todd Willingham. i. Forensic Evidence The petitioners have presented undisputed scientific evidence exculpating Willingham of setting the fire which caused the death of his three daughters. Nine world-renowned arson experts have reviewed the evidence used to convict Willingham, all declaring that each and every arson indicator relied upon by Vasquez and Fogg was scientifically unsound. Without this 13

evidence, there is no basis upon which to support a conviction. The expert reports and the credible and reliable in-court testimony of Lentini and Dr. Hurst demonstrate beyond any doubt that not a single piece of evidence presented at Willingham’s trial indicates arson. ii. Witness Testimony Having found the forensic evidence presented by the Petitioners to be overwhelming, credible, and reliable, this Court further finds that when the evidence is weighed against the testimony of Webb, there can be no doubt that the exculpatory forensic evidence clearly outweighs Webb’s inculpatory testimony. The extreme unreliability of jailhouse informant testimony has long been recognized by criminal law professionals and scholars. The motivation for jailhouse informants to lie in the hope of lenient treatment or early release is obvious and inherent in the system, even absent an explicit promise from prosecutors. The unreliability of this form of testimony has been well known for decades, as discussed most recently in Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions. See Daniel S. Medwed, Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions, 51 VILL. L. REV. 337, 364–66 (2006). This Court notes that the Texas Legislature has recognized the suspect nature and dubious value of jailhouse informant testimony and now requires corroboration of such testimony. Tex. Code Crim. Pro. art. 38.075. Admittedly, this statute was not in effect at the time of Willingham’s execution, but it is nevertheless persuasive guidance of the weight that should be given to uncorroborated jailhouse testimony. In this particular case, Webb’s testimony at trial and his subsequent recantation demonstrate the low value that his testimony must be given when weighed against the new forensic evidence. For example, Webb’s account of where he received Willingham’s confession is improbable, if not implausible. Additionally, his inability to recall his own criminal past casts doubt on the accuracy of his recollection of any conversations he had with Willingham. More importantly, Webb’s specific assertion that Willingham confessed to spraying the walls with lighter fluid and to spraying lighter fluid in the children’s room in an X-pattern is conclusively rebutted by the forensic evidence. Finally, Webb’s subsequent recantation, stating that he “was forsed [sic] to testify against Mr. Willingham by the D.A.s [sic] office and other officials. I was made to lie. Mr. Willingham is innocent of all charges” persuades this Court to give Webb’s trial testimony absolutely no weight in the evaluation of Willingham’s free-standing claim of actual innocence. Accordingly, this Court concludes that the Petitioners have shown by clear and convincing evidence that no reasonable juror would have convicted Willingham in light of the newly discovered evidence. Cameron Todd Willingham suffered the ultimate harm to his reputation, namely, being executed for a crime he did not commit; that indignity is magnified by the fact that the crime for which he was wrongfully executed was the justly reviled crime of filicide.

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B. Proposed Solutions The wrongful execution of Cameron Todd Willingham demonstrates a remarkable and profound failure of two branches of our government, the judicial and executive branches. It is inexcusable that the Hurst Report, a powerful document completely undermining Willingham’s conviction, was ignored by both our highest criminal court and Governor Perry. This case exposes the urgent need for the legislative branch to become actively involved in formulating a solution to ensure that a tragedy of this magnitude never happens again. i. The Judicial Branch Failed Willingham Willingham’s writ attorney treated the February 13, 2004, filing as a subsequent habeas application under Article 11.071, Section 5 of the Code of Criminal Procedure, which imposes an extremely high burden on any applicant.6 In light of this Court’s holding that Willingham was wrongfully executed, it is clear that the evidence presented in the Hurst Report was powerful, persuasive, and should have been considered. However, the judicial branch shirked its duty and fumbled the ball to the executive.7 To compel the judicial branch to consider such evidence, the Texas legislature should expand Chapter 64 of the Texas Code of Criminal Procedure to include more than just DNA evidence; all scientific evidence relied upon by the State to obtain either the conviction or sentence should be subject to post-conviction review. The beauty of scientific evidence is that our ability to test and improve it will continue to change and improve over time. An expansion of Chapter 64 beyond its current limitation to DNA will ensure that new technology and theories are used to evaluate verdicts based on older and perhaps unsound approaches to the same scientific areas. As noted above, every arson indicator relied upon by Vasquez and Fogg in 1991 has been determined to be unreliable and unsound. Today, the indicators relied upon as clues for arson are accurately described as nothing more than “Old Wives’ Tales.” Nevertheless, they                                                         
Article 11.071, Section 5 demands that the application contain sufficient specific facts establishing either that: (1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; (2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or (3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071, 37.0711, or 37.072. Tex. Crim. Pro. Ann. § 11.071 (West 2010). criticism is not limited to the members of the Court of Criminal Appeals in 2004; in a tragedy of this magnitude there is plenty of blame to go around. As noted above, that Court considered this case twice before, on direct appeal and on the initial writ. I was a member of the Court of Criminal Appeals on both occasions, and, therefore, I am partially responsible for this miscarriage of justice.  
7 This

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served as the basis for Willingham’s conviction. More importantly, it was not subject to challenge in light of the current state of the science as set forth in the Hurst Report in 2004. Finally, this expansion of Chapter 64 would allow a thorough review of the evidence by the judicial branch in order to correct and prevent further miscarriages of justice. In other words, the judicial branch would be responsible for correcting an error that arose in the judicial process, namely, a criminal trial. The judicial branch would no longer be entitled pass the buck to the executive branch. ii. The Clemency System Failed Willingham The second option available to Willingham, clemency, also failed. The Board’s unanimous refusal on February 13, 2004, to recommend either a commutation or reprieve is understandable in light of the facts of this case as the Board understood them to be. However, the evidence is clear that the Governor’s Office was informed of all of the facts, including Dr. Hurst’s opinion that the fire was not intentionally set. This was set forth in Reaves’ letter requesting a 30-day reprieve, and the Governor’s Office had a copy of the Hurst Report prior to Willingham’s execution on February 17, 2004. In other words, even if Vasquez and Fogg are given the benefit of the doubt as to their opinion of arson because of the unsettled state of arson science at the time of the fire, by 2004 there was no doubt that every single indicator of arson had been debunked by the scientific community. This fact was staring Governor Perry in the face; nevertheless, he refused to grant a reprieve. The failure to grant a reprieve exemplifies either gross negligence when reviewing the evidence presented in support of the reprieve request or a callous disregard for human life. Either conduct is reprehensible and wholly unacceptable in a society which extracts the ultimate punishment of death. In capital punishment settings, because the punishment is irreversible, the Governor is given the option of granting a 30-day reprieve when presented with a persuasive claim of actual innocence to ensure that an innocent person is not executed. The reprieve gives the condemned time to re-petition the courts for redress or to ask that the evidence be considered by the Board. Neither opportunity was provided in this case. Clemency is designed to play a critical role in the judicial system, offering an opportunity for the executive branch to commute an individual’s sentence either as an act of grace or to remedy an injustice that occurred in the criminal justice system. Courts at every level have recognized the significance of clemency; Justice Rehnquist, for example, famously described clemency as “the ‘fail safe’ in our criminal justice system” for those who have experienced the fallibility of the system. Herrera v. Collins, 506 U.S. 390 (1993). Despite its acknowledged importance, the Supreme Court has established only the most minimal procedural safeguards for clemency proceedings, asserting that judicial intervention might only be warranted “in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998). By this standard, courts deem nearly every process constitutional, absent a sheer lack of method by which a petition should be judged. The legislature has known for years that the Texas clemency process is a disgrace, “a legal fiction at best.” Ex parte Tucker, 973 S.W.2d 950, 951 (Tex. Crim. App. 1998) (Overstreet, J., concurring). see also Faulder v. Texas Board of Pardons and Paroles, No. A98CA801SS, slip op. at 16 (Dec. 28, 1998). Currently, neither the Texas Board of Pardons and 16

Paroles nor the Governor follow any procedure when reviewing clemency petitions. This “process” has become nothing more than an echo chamber for the judicial system, claiming the case has been so thoroughly reviewed by the judiciary there can be no reason for the executive to intervene. This approach reduces clemency from the “fail safe” in our criminal justice system to a useless exercise for those, like Willingham, who can demonstrate their innocence. Judge Overstreet explained, “it is within the Legislature’s prerogative to enact laws to correct some of these problems.” Tucker, 973 S.W.2d at 951. The legislature should prescribe a non-exclusive list of factors that both the Board and the Governor should consider when reviewing clemency petitions. Such factors could be newly discovered scientific evidence, claims of actual innocence, mental retardation, and relative culpability, aspects of the case and traits of the individual that did not surface during the prior proceedings, among others. Although a fundamental tenet of clemency is that it can be granted for any reason or no reason at all, such a list would provide useful guidelines to the executive branch when making its determination. VI. CONCLUSION

No court can restore the life of Cameron Todd Willingham, and no court can restore to him or his family what they lost due to the actions of the State of Texas. This Court can, however, rule within the law in an attempt to provide a remedy. Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED on this, the 22nd day of December, 2010, that The Petitioners properly invoked this Court’s jurisdiction under Article 1, Section 13 and Article 5, Section 8 the Texas Constitution.8 The Petitioners have proven to this Court that Cameron Todd Willingham was wrongfully executed, and he is hereby exonerated. The reputation of Cameron Todd Willingham is hereby restored, and all legal disabilities to his survivors as a result of the harm to his reputation are removed.

                                                        
At the hearing, no evidence was submitted that would warrant a Court of Inquiry to determine whether anyone at the Texas Fire Marshal’s office committed the crime of official oppression as alleged in the petition; therefore, there is no basis for this Court to request the presiding judge of this administrative judicial district to appoint a district judge to commence a Court of Inquiry. Tex. Code Crim. Proc. art. 52.01(a). However, it must be noted that the current Texas Fire Marshal, Paul Maldonado, continues to support the conclusions reached by Vasquez and Fogg, despite the fact that nine renowned experts in the field of arson science have unanimously discredited their methodology. This profound stubbornness is inexcusable. Maldonado should immediately order a complete and thorough investigation of all arson cases wherein prosecutors relied upon any of these unsound and unreliable indicators to prove arson. Until such a comprehensive examination is conducted, Texans will rightly question the validity of those convictions, and many innocents may continue to suffer for crimes they did not commit.
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The legislature is encouraged to pass comprehensive legislation to ensure that an innocent human life is never again taken in the name of the Citizens of Texas.

/s/

Charles F. Baird

JUDGE CHARLES F. (Charlie) BAIRD Judge Presiding, 299th District Court

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