Actual Innocence.

In life, there are occurrences which profoundly impact a person’s schemas, and shift how one interprets and understands the world around them. In 2009, while I was working as a legal intern for the Montana Innocence Project, I had one of these occurrences. My boss placed an article on my desk which was titled “Trial by Fire.” The article (which is summarized below) was authored by David Grann and had recently been published in The New Yorker. As I read the article, I began to sob.

Cameron Todd Willingham

On December 23, 1991, a fire moved quickly through a one-story wood frame structure in Corsicana, Texas. At 23 years old Cameron Todd Willingham (“Willingham”) and his wife Stacy (who was 22 years old) were parents to three little girls. Kameron and Karmon were one year old twins and Amber was two years old. Stacy left the house early that morning to shop for Christmas presents for the girls. After Stacy left, Willingham got up and gave the twins a bottle. Amber was still sleeping so he put a safety gate across the children’s doorway. Amber could climb over the gate, but the twins could not. After drinking their bottles, the twins would usually nap in their room. Willingham went back to his room and fell asleep.

At some point, Willingham awakened to Amber screaming, “Daddy, Daddy!” Willingham smelled smoke. He quickly put on a pair of pants and went down the hall to the children’s room. As he traversed the hallway he could hear sockets and light switches popping. When he finally made it to the children’s bedroom his hair caught on fire. The heat radiating out of the children’s room was so intense that Willingham began to pass out. At one point, Willingham thought he had found one of the twins, but it was just a doll. Finally, he staggered out of the house and screamed to his neighbor to call the fire department. After the flames were extinguished, Amber was found dead in Willingham’s bedroom, where she had died of smoke inhalation. The twins, who were badly burned, had died in their bedroom.

Fire investigators began the process of determining the cause of the fire. Even though the state of Texas certified its arson investigators, there were no clear standards for investigators to use to determine whether fires were intentionally set or accidental. The National Fire Protection Association (“NFPA”) is the nation's leading standard-setting organization for fire science. However, the NFPA did not begin developing clear standards in this area until 1992. However, many states lack any legal requirements for a person to become a fire investigator. In other states, a private investigator’s license is the only requirement necessary to investigate a fire and testify to its origins. Arson is classified as both a misdemeanor and a felony offense. However, when arson is intentional it is usually classified as a felony and when there are aggravating circumstances such as a fatality, the alleged arsonist can be eligible for the death penalty.

The first fire on the Earth Plane occurred when the 13th Ray of Destruction hit Earth and destroyed Yanini. Yanini was the genesis of Earth and its most evolved civilization. Due to the intense heat which was caused by this 13th Ray striking the Earth Plane, the chemicals in the core of the Earth liquified, expanded and found their way to the Earth’s surface. The noxious vapors from these oozing chemicals formed noxious gases, which caused explosions in the upper ether. The combustion of these noxious vapors created fire. Even though fire has existed on Earth for hundreds of millions of years, humanity’s understanding of fire has remained primordial.

In Willingham’s case, it would be much later before the concept of “flashover” was commonly understood by investigators. Flashover is the point at which radiant heat causes a fire in a room to become a room on fire. Flashover occurs when a fire in an enclosed space erupts out of a room’s windows and doors. Prior to 1991, it was widely believed that a “naturally occurring” flashover, or a flashover without liquid accelerant, took much longer to occur. Unfortunately, this misconception proved to be the tip of the spear which resulted in the execution of an actually innocent man.

Douglas Fogg and Manuel Vasquez were tasked with investigating the Willingham fire. Vasquez, a deputy fire marshal, had investigated some twelve hundred fires across Texas. Fogg was a 20-year certified arson investigator and the Corsicana, TX fire chief. On December 27, 1991, four days after the fire, Fogg and Vazquez arrived at the Willingham residence to begin investigating the deadly fire. As the arson investigators walked throughout the house, they noticed distinct “pour patterns” or “puddle configurations” along the base of the walls. Fogg and Vasquez believed that puddle patterns indicated that a liquid accelerant was used in that area. When an accelerant is used, fire concentrates in the puddles. Moreover, just outside the front door on the concrete porch, they noticed brown stains which they believed was also indicative of an accelerant. Additionally, in the children’s bedroom the metal springs under the beds turned white, which indicated that the heat was more intense in that location. The windows also had spider web patterns, which they believed indicated an intensity of heat. Ultimately, Vasquez determined that the fire had originated in three locations: the children’s bedroom, the hallway and the front door. At trial, Vasquez would testify that Willingham poured accelerant under the children’s beds and lit them on fire, with the children in them.

As far back as 1969, scientists published findings which cautioned against using some of the same arson indicators which Fogg and Vasquez relied upon to conclude that Willingham had used an accelerant. This was due to the unreliability of the indicators and the propensity of those indicators to be misinterpreted. Several months prior to Willingham’s trial, the NFPA issued guidelines which directly contradicted Fogg and Vasquez’s “expert analysis.” Yet, Fogg and Vasquez remained steadfast regarding their analysis.

When Fogg and Vasquez interviewed Willingham about the cause of the fire, Willingham believed the fire originated in the children’s room from a space heater. Willingham had taught Amber not to play with the space heater as it had an internal flame. However, occasionally Amber would play with the heater. Vasquez would go on to testify that he had checked the heater four days after the fire, and it was in the off position. Based upon the intensity of the fire, it seems highly improbable that the heater did not melt or explode. Willingham also surmised that the fire could have been electrical in nature due to the popping and crackling which he heard in the hallway.

John Jackson (“Jackson”) the assistant district attorney in Corsicana, was assigned to prosecute Willingham’s case. Prior to trial, Jackson offered Willingham a plea deal. Willingham could plead guilty in exchange for life in prison. Willingham refused. Jackson enlisted the help of Willingham’s parents, even showing them pictures of the badly burned twins and informing them that if the case was tried Willingham would almost surely receive the death penalty. Willingham told his parents he did not murder his children and he would never plead guilty, simply to avoid the death penalty. In August of 1992, after a trial which lasted a mere two-days, Willingham was convicted of murdering his three daughters and was sentenced to die by lethal injection.

Within a year after Willingham’s conviction, Stacy filed for divorce. For multiple years, Willingham’s parents were his only visitors.  They traveled from Oklahoma once a month to spend four hours with him. Otherwise, Willingham spent twenty-three hours a day in his cell. In 1999, Willingham wrote a letter to Elizabeth Gilbert (“Elizabeth”). Elizabeth had volunteered with an organization to be a pen pal with an inmate on death row. A few weeks later she received a letter from Willingham. Elizabeth and Willingham formed a friendship during the last five years of Willingham’s life. During this time, Elizabeth began investigating Willingham’s case and uncovered numerous inconsistencies with eye-witness accounts. The more time she spent in the Willingham case file the more concerns she had. Could Willingham actually be innocent?

In January of 2004, approximately one month before Willingham was scheduled to be executed, Elizabeth sent his case file to Dr. Gerald Hurst (“Hurst”). Hurst was a decorated scientist and fire investigator. Hurst began to focus on Vasquez’s testimony and claims. Vasquez had testified that because the fire had burned fast and hot, accelerant had been used. While Hurst knew that fire investigators had theorized for decades that accelerant caused fires to burn hotter and faster than natural fires, he knew firsthand that this was false. Science had proven that both types of fires burn at the same temperature.

Vasquez had theorized that the brown stains on the front porch were indicative of an accelerant. However, Hurst had conducted numerous experiments in his own garage using each brand of liquid accelerant. Each time the result was the same; when liquid accelerant catches fire on concrete it does not leave brown stains. Yet, brown stains are common in fires. So, what causes them? The stains occur when charred debris mixes with water.

Hurst analyzed Vasquez and Fogg’s claim that there were “pour patterns” and “puddle configurations,” which indicated that a liquid accelerant had been poured. However, prior to Willingham’s fire, science had already shown that natural fires create “pour patterns” and “puddle configurations.” In 1991, Hurst had recreated a fire in Jacksonville, FL. Police were investigating a father who was accused of using an accelerant to burn his house down and kill six people. The evidence in the Jacksonville fire was eerily similar to Willingham’s.

In what became known as the “Lime Street Experiment,” Hurst was able to recreate a fire and study the results. The house next door had the same floor plan. It was further condemned and scheduled to be demolished. Investigators filled the house with similar drapes, carpet and furniture. Then, with the backing of the prosecution, a fire was created in the exact same manner as the defendant had described. The results shocked investigators. They observed that a fire can reach flashover in just four and a half minutes. It was common knowledge that flashover took much more time when liquid accelerant was not used. The Lime Street Experiment proved that: (1) flashover can cause the classic signs of arson; (2) the only reliable way to determine if liquid accelerant was used is to take samples of the “pour patterns” and “puddle configurations” and test them in a laboratory; (3) flashover can cause charring along the base of the walls and doorways, and burning under furniture; (4) flashover can cause V shaped patterns far from where the fire was ignited; and (5) post-flashover can cause burning under beds, aluminum to melt, and doors to disappear. Even though the results of the Lime Street Experiment were available to Vasquez and Fogg prior to Willingham’s trial, they remained committed to their erroneous determinations.

Hurst had finalized his report and concluded that not “a single item of physical evidence…supports a finding of arson.” Willingham’s attorney submitted his Petition for Clemency along with Hurst’s report to the Texas Board of Pardons and Paroles. On February 13, 2004, four days before Willingham’s scheduled execution, his attorney informed him that the Board had unanimously denied his Petition. Willingham was incredulous. Hurst had helped to exonerate more than 10 people. What was missing in his case? Through the Freedom of Information Act, the Innocence Project obtained all of the records from the Governor’s office and the Board which pertained to Hurst’s report. Neither office had any record of anyone even reading the report, much less acknowledging its significance. The Board, which is statutorily created, has the power to halt an improper execution. However, between 1976 and 2004 the Board granted clemency in only one case. Instead of meeting in person, members of the Board would usually fax their decision regarding a Petition of Clemency. This “technique” was colloquially referred to as, “Death by Fax.”

Willingham was executed by lethal injection on February 17, 2004. His last words were: “The only statement I want to make is that 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. From God’s dust I came and to dust I will return, so the Earth shall become my throne.”

As a proponent of the death penalty, I could not believe that in the face of so much exculpatory evidence, the state of Texas executed an actually innocent person. It was in this moment, that a profound shift occurred within me. I would never again support the death penalty. Having been raised in Georgia, it was sacrosanct that those convicted of committing an intentional homicide would be sent to Reidsville, GA. Reidsville housed Georgia’s sole means of execution, “Old Sparky.” Up until October 25, 2001, the only method of execution used by the state of Georgia was the electric chair and historically, Georgia did not limit the death penalty to certain homicides. In the landmark Supreme Court case, Coker v. Georgia, 433 U.S. 584 (1977), the Supreme Court held that pursuant to the Eighth Amendment, sentencing a person to death for the rape of an adult woman was grossly disproportionate and constituted excessive punishment and was thus unconstitutional. After the Coker decision, states limited the death penalty to homicides with intent.

Since 1973, at least 195 people who were sentenced to death have been exonerated. When a person is exonerated, he is found actually innocent. This is much different from being found “not guilty.” Not guilty means that the accused could have committed the crime; however, the government does not have the evidence to prove it. On the other hand, actual innocence means the accused and/or convicted person had zero involvement in the alleged crime(s).

Willingham is widely recognized as the “first” actually innocent person executed by the government. Yet, this is false. Governments have been executing actually innocent persons for thousands of years. The most famous of which is Yeshua, or Jesus. It is common knowledge that Pontius Pilate ordered that Yeshua be crucified. However, it is not commonly known what charges were brought against Yeshua. The answer may lie in the Gospel of John which states: “Pilate then went out unto them, and said, What accusation bring ye against this man? They answered and said unto him, if he were not a malefactor, we would not have delivered him up unto thee.” What is a malefactor? The English word malefactor is the translation of the Greek word kakopoios, which in legal contexts can mean “magician” or “sorcerer.” Both Jews and Romans had strict laws that punished certain kinds of magicians, sorcerers, fortune-tellers, diviners, spirit workers, and miracle workers. It was a capital offense to use miracles (signs or wonders) to lead people into apostasy (to go after other gods): “If there arise among you a prophet, or a dreamer or dreams, and giveth thee a sign or a wonder, and the sign or the wonder come to pass, whereof he spoke unto thee, saying, Let us go after other gods,…that prophet, or that dreamer of dreams, shall be put to death.” See Deuteronomy 13:1-2, 5.

Yeshua was put to death because the government did not understand his “miracles.” Ultimately, Yeshua was a threat to those who sought to gain and maintain power.

While Willingham and Yeshua were executed approximately 1,971 years apart, the similarities are striking. Both Yeshua and Willingham were actually innocent and were put to death by the government. In both cases, the charges were fabricated and unsupported by the evidence. Additionally, the government could not explain and/or understand the actions of the accused and relied upon the testimony of '“experts” who were not experts. Nor were they objective fact finders, or qualified to give ultimate conclusions. Finally, certain eyewitnesses whose testimony was malleable at best and contrived at worst, testified against the accused. These scenarios created the perfect storm, for government to murder actually innocent persons. There is nothing more offensive and intolerable than the government targeting a person, pre-determining his guilt, and creating a narrative to convict and put him to death. Yet, still to this day, actually innocent people sit on death rows all across the United States.

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