Justice Can Wait

Cameron Todd Willingham

Less than 72 hours before the state's Forensic Science Commission was scheduled to hear from national fire expert Craig Beyler regarding his conclusions in the Cameron Todd Willingham case, Gov. Rick Perry removed three members of the commission and replaced only two – sending into bureaucratic (and political) limbo the next step in vetting whether in 2004 the state executed an innocent man.

The commission was created in 2005, partly in response to questions about whether the state executed Willingham for an alleged arson-murder that might have in fact been a tragic accident. Beyler was scheduled to discuss his report, submitted in August, in which he concluded that the state's evidence against Willingham was based on junk science and personal biases.

Willingham was executed in 2004 for the 1991 arson-murders of his three young children inside his family's Corsicana home – with Perry's official assurance that the case had been sufficiently reviewed and that Wil­ling­ham was indeed guilty of the heinous crime. Willingham was adamant, however, that he was not responsible for the deaths of his children, all younger than the age of 3: "The only statement I want to make is that I am an innocent man – convicted of a crime I did not commit," he said before his execution on Feb. 17, 2004. "I have been persecuted for 12 years for something I did not do."

At the request of the New York-based Innocence Project, the case was subsequently reviewed by a group of fire-science experts, who concluded that the fire that consumed Willingham's home and killed his children was not arson. Those conclusions were brought to the Forensic Science Commission, which was asked to review Willingham's and another case and to undertake a review of all arson convictions across the state. In Aug­ust, the commission received the report from Beyler, the nation's leading fire-science expert. His conclusions were not flattering to the state, its fire experts, or the Texas criminal justice system. "The investigators had poor understandings of fire science and failed to acknowledge or apply the contemporaneous understanding of the limitations of fire indicators," Beyler wrote in his Aug. 18 report. "Their methodologies did not comport with the scientific method or the process of elimination. A finding of arson could not be sustained" based on a "standard of care" grounded in science. The implications were devastatingly clear: If there was no arson, then there was no murder for which to try or execute Willingham.

The commission had scheduled a hearing for Oct. 2 to review Beyler's report, but just two days before that meeting, Perry removed three of the nine members. The three members' terms officially expired on Sept. 1; according to Perry, it would be better to replace those folks during the "start" of any investigation rather than after it had begun, he told reporters last week. Clearly, Perry's understanding of the status of the commission's work was different than that of commission members – or so it would seem. "I was surprised at the timing," said Sam Bas­sett, the Austin attorney appointed to represent the defense bar and who had been acting as the commission's chair. "We were just getting into the heart of the work." Bassett said he knew his term was up and also that Perry had asked the Texas Criminal Defense Lawyers Association for a list of 10 names of possible appointees. The TCDLA wrote to Perry, urging him to reappoint Bassett. Instead, Perry decided to remove him but has yet to name anyone to take over his spot – although he has appointed a new chair, Williamson County District Attorney John Bradley, who will be filling ousted board member Alan Levy's spot. "I am concerned," Bassett said, referring to the possibility that the work the commission started might be indefinitely delayed or might not get done at all.

Indeed, although it is Perry's prerogative to fill those spots as he chooses, the 11th-hour replacements caught the replaced members unaware – including Levy, the veteran assistant district attorney in Tarrant County who had been appointed to the panel to represent the state's prosecutors. "I was surprised," he said, to find out late Tuesday, Sept. 29, that he would be replaced. Levy said he was not offered the opportunity to stay for a second term and was dismayed to have to leave while the commission was in the middle of such important work. "I don't like to leave work unfinished," he said.

In a press conference last week following widespread media inquiries, Perry suggested that abruptly changing the panel was nothing out of the ordinary. But the governor has seldom felt the need to act quickly to replace commissioners serving in other appointed posts just because their official terms have expired. The late Department of Trans­port­a­tion Executive Commissioner Ric Williamson lingered in his post 10 months after it had expired, notes the Quorum Report's Harvey Kronberg. "I can't think of any time [he's done something like this], just as a high profile report is about to come out," he said. "It has created the perception that he is preempting that report."

New chair Bradley – who also got his first shot at public office in 2001, thanks to Perry, who tapped him to serve out an unexpired term – is known both for his intelligence and for his unwavering "lock-'em-up" approach to justice. Following his appointment, Bradley quickly canceled the Oct. 2 commission hearing, telling the States­man's Jason Embry that he needed to do his "homework" before "forming any opinions about the Commission or individual cases." That was in the wake of a New York Times report that there may not be a future hearing at all. (Bradley failed to return a call requesting comment for this story.)

Barry Scheck, head of the Innocence Project, was dismayed by Perry's decision to re-create the panel. "It is embarrassing and utterly irresponsible," he said last week. "And it is utterly self-protective when there is strong scientific proof that he executed an innocent person."