sxswf: Even More 'Incendiary'

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Incendiary: The Willingham Case

The death penalty case of Cameron Todd Willingham, executed in 2004 for the alleged arson murders of his three young children more than a decade earlier, has brought to the fore serious questions about the reliability of forensic evidence in criminal cases, and about whether Texas relied on outdated fire science in order to send a man to his death.

Austin filmmakers Steve Mims and Joe Bailey spent more than a year working on their new documentary, Incendiary, which traces the Willingham case and the heated politics that surround it. Whether the state may have executed a man for a murder that wasn't is as yet unresolved, but Incendiary, premiering Saturday, March 12, at 4:30pm, does a fine job of laying out the questions that remain and leaves open the question of whether the state made an error that it is too late –at least for Willingham – to correct.

Below are additional excerpts of our interview, which appears in this week's SXSW Film preview, with Mims and Bailey about their film and the politics that surround the case.

Austin Chronicle: So…how did you guys end up working together on this Willingham project?

Steve Mims: We had this conversation in [the UT film] class [that Mims teaches] about the death penalty. …I said to Joe, it's sort of easy for people to…actually, it goes back to [when] George W. Bush [was governor] and how it didn't appear that there was a lot of time spent on appeals for the death penalty. And that it was just sort of rubber-stamped. Joe was…not convinced. So I talked to him about this article, the David Grann article that was in The New Yorker [dissecting the Willingham case]. And so he went and read that and wrote me back saying he thought it was great and would make a great film. And, knowing what that was, I started to write him back and was going like, yeah, it would make a great film and it's a lot of work – and it's going to take more hours than you can imagine. But by the time I got to the end, I was like, and we should go ahead and do it. [Laughs.]

AC: So when did you start working on the project?

SM: It was early in October of 2009.

…

AC: I wanted to ask you…I don't know if you know this, but this morning [Feb. 28] the [Texas Legislature's] Senate Nominations Committee took up the nomination of John Bradley to be on the [Forensic Science Commission] panel [which is currently reviewing the arson science used to convict Willingham] – because he was, in an interim situation, appointed, so the Senate has never confirmed him. So this morning he appeared before the Committee and took some interesting questions, primarily from [Houston Democratic] Sen. Rodney Ellis, and they got into a couple skirmishes. But one of the things that Ellis asked him about was, had he had Open Meetings [Act] training and wasn't there an incident in Harlingen…

SM: Oh! [Laughter from SM and Joe Bailey]

AC: …where…he had basically kept a camera crew [Mims and Bailey] out of the meeting, and did he find that to be an Open Meetings violation? And what I thought was really interesting was that Bradley's response was extremely nonchalant. 'Of course I've had Open Meetings training,' and his explanation of [keeping you two out of the room and from filming the meeting] was, 'well it was a really small room' – which, I might add, he chooses those rooms and they're always small. But [it was] this really nonchalant thing about the room was really small and there were a bunch of cameras there already, and there was one crew [Mims and Bailey] and they were in the hallway, so we just shut the door. And it was sort of like, 'well, what am I suppose to do about it?' and there was no violation [of the Open Meetings law]. So I'm curious to ask you, because it's a really interesting point in the film, [and] where you introduce this whole new phase of this inquiry. What happened that day, and was [Bradley] as nonchalant as he claimed this morning?

SM: No. No; he was anything but nonchalant. There was one camera in the room: The Innocence Project…was trying to stream the video [of the meeting] and they were set up in the corner. We got there early, we actually stayed in the same motel, so I went in there with a tripod and a camera in the corner and he grabbed us right away. And…said 'you can't be in here.' So we had a conversation about that. …Here's how not nonchalant he was: So, we had this conversation with him before it started and he essentially said, 'no, you can't be in here.' So we're waiting out in the hall and…

AC: What was his reason? Did he give you a reason?

SM: No! No, no, no! He had no reason for it.

Joe Bailey: He tried to claim that we didn't make a prior agreement or arrangement.

SM: And there's no form [to fill out] for a prior arrangement.

JB: And I said, 'well, we did drive from Austin to Harlingen…'

AC: By the way – and by the way, the meeting is the farthest place away that it could be…

SM: Exactly. So, anyway, we're waiting outside and I take the camera and go back to the doorway, before the meeting has started, and I see he looks over like that [indicating a sideways look], and he barreled toward me, and fortunately I had the camera turned off. I turned it off right where you see in the film where he literally pulls the door, and hit the camera lens with the door – that's the 'clonk' you can hear [in the film]. But, no, he was totally – it took a phone call. Joe talked to the [Texas] Attorney General's representative that was in the room. And we have an attorney friend here in Austin…and I called him and he called the Attorney General's Office here [in Austin] and they sent a text or whatever to [the AG representative] who was in the room. And during the break [the assistant AG] took [Bradley] aside or whatever, and suddenly we could go in.

JB: So, I stayed inside and we set up our cameras outside to show the time elapsed of us sitting outside. But I went inside and watched the meeting. And I pulled up the statute on my phone, the Open Meetings Act, and showed it to Barbara Deane, the [assistant] attorney general who was there – who is very nice, by the way – and she kind of looked at me and nodded. And at the same time I think her assistant was receiving messages from the main office here in Austin, saying 'you probably ought to let those guys film.' So she tapped Chairman Bradley on the shoulder and whispered in his ear and then they called a break and she told us – he never talked to us after that – she told us that we could come in and set up.

AC: After that did you have a nice relationship with the Commission, or, going forward, how did it go? Obviously, you had a right to be there. And that's what he obviously learned that day.

SM: Here's the thing, and this is just my opinion. I think the [meeting] was [set] in Harlingen just simply so that people like us would not show up. He didn't care whether it was our right.

JB: We expected to go down there and have it be boring and a waste of our time. But that gave us motivation, I guess – and material.

SM: You know, the sense I get from that whole Forensic Science [Commission] thing is, there are a lot of people [involved with the Commission] who have had to learn how to interface with [Bradley], like the Attorney General. And I think that…a lot of people probably object to, [and] have been put in a bad position because of, him. Like the Attorney General would not want to deal with that. And you get that sense from a lot of people.

JB: I like to joke with Chairman Bradley though. We have kind of a rivalry, friendly relationship now. It took a while though.

AC: Well, that's nice. I don't think he cares for me.

JS/SM/JB: [Laughter]

…

AC: Just a couple more things I wanted to ask you. After going through this long process and seeing this finished – and knowing, as well…that the real-life story is unfinished – are there any conclusions you've drawn about this case?

SM: Yes. I think that, well, what's the best way to put it? If Willingham had had financial means, this would never have happened. There would have been a change of venue somehow or that case would not have [gone forward].

AC: Well, as they say, no one ever pays to go to death row.

SM: Yeah. And so, I think that's true. And I think that it's true that you can say that, all the signs are saying – and this ties into that – there is not evidence of what they accused him of. And, so, the enigma of it is that you can't really know what happened. As [Willingham's trial attorney David] Martin likes to say, all the witnesses died in the fire.

JB: All you can know is that it didn't happen the way they said it happened.

SM: Yes. So, I think that the unbelievable thing about it is, the thing this jury believed, is that this man woke up at about 9am, in broad daylight, and decided to burn his house down. So, he only put on his pants, and then he decided to burn his house down, and then went outside and pretended that he woke up and his house was on fire. So, that's what they believe.

JB: And he screamed bloody murder trying to get back in [to the house].

SM: Yeah. So what [Willingham] says is: he woke up; his house was on fire. He had time to put his pants on and go outside and then he realized the kids were in there. And what we know from the fire science is that you can't get back in there [once the fire has reached flashover]. So that's what's phenomenal about the whole thing….

JB: Well, Occam's Razor is what Steve is always talking about…

SM: Yeah, yeah…[the simplest explanation is] probably the truth.

AC: Which would not be that he woke up, put his pants on, and killed his kids.

SM: And ran around barefoot, setting stuff on fire. In the daylight! Who burns their house down at 9am?

AC: I don't know…

SM: And then he burned himself, [to have] evidence of…

AC: That he didn't do it.

SM: It's like looking at this very simple thing and coming up with this rationale for it that is unbelievable.

JB: The only evidence they have is of [accelerant] puddle and pouring patterns, which can't be. They cannot, because they would've found the residue [and in testing, no accelerant residue was found anywhere in the house].

AC: One of the things that [the former Forensic Science Commission Chair Sam] Bassett talks about [in the film] is that he worries about what [this case] says about the future. And I think one of the things he says too is that he is worried about what it [says] about the Texas criminal justice system. And I'm wondering, does [this case] tell you anything about Texas' criminal justice system?

JB: Yeah, well, the thing for me that I've enjoyed that we've done is that the film doesn't take itself too seriously on the one hand. And it has a sense of humor about…people and human nature and these battles that are waged. But it is very serious about what happened. You know, as a society we can only do our best – but at least we can do that. And I don't think that we have been doing that. And…I just wish that people would leave their politics at the door when they come in to talk about how we convict people, because it doesn't have anything to do with [politics]. And, you know, I think a lot of it is that maybe we need to rethink the Texas Constitution, about the…process by which the governor is expected to fill [his] role [in reviewing cases], beacuse it doesn't seem that he is capable of doing that. I think prior governors have been. I think [former Texas] Gov. Mark White was. He sat by the phone the night of all executions, you know? I hope that Gov. Bush was a bit more careful, but that is up for debate.

AC: That's up for debate.

JB: For me, it all comes down to what you can know and what you can't know. When you're in a court of law, people are innocent until proven guilty; you have to prove beyond a reasonable doubt that they did it. And we absolutely did not prove – no reasonable jury, given the evidence, could have convicted Todd Willingham. They did at the time, because they were told by an expert, with no other expert rebutting that, that it was arson.

SM: I think the optimistic part of it is that, according to [Austin-based fire scientist Gerald] Hurst, Texas is further along in setting up this review, with the Texas Forensic Science Commission.

AC: I don't know if that scares me or makes me feel better.

SM: Well, the thing is that there are a lot of states that have not taken that step. All Texas needs is to populate [the Commission] with people that don't have an agenda. The only thing the scientists on that board have are their reputations and they can't sign on to a bogus proposition [about the validity of the science used in a particular case, like Willingham's], the way a politician can. That is where the rubber meets the road. …[B]ecause in order to come to [such a] conclusion they would have to forfeit their careers.

AC: That's true; that's true.

SM: They can't go out after that with a straight face and be like, whatever. It is their job to be objective. It is a built-in conflict [with Bradley as the chairman and seemingly pushing the Commission to a particular conclusion]. But it is only a built-in conflict because there was not somebody like Sam Bassett [still] in charge of [the Commission] who says, you tell me; you're the scientists. That seems simple enough.

…

JB: The most frustrating part for me, and the most life-affirming part, is seeing the rug pulled out from underneath these professionals [on the Commission] who are trying to do their job, and seeing them be resilient and weather the storm; they don't give in. In the last meeting, something that didn't make it into the film – which I would've liked to put in the film, but there's only so much you can do in a feature film – is they voted to open up all of those meetings that Bradley had [created], the subcommittees that he'd set up [that were only three members apiece, avoiding a quorum and thus avoiding Open Meetings Act requirements]. They convinced him, by the end of the meeting, that they needed to be open. And that's a beautiful thing. And it might take a year [to finish the Willingham inquiry] and he might have slowed everything down. But the scientists, they're steady and we all might get frustrated – as journalists or as people who might be interested [in the case] – but they're going to keep doing their job. And as long as that board is populated by scientists I'm confident they're going to get there eventually.

AC: That's good; you made me feel good too! Or at least better.

JB: At least that's what I'd say.

AC: No, I think you're right. …Any other thoughts about the film? Important thoughts to keep in mind?

SM: I think that one thing about our approach to the film is, we tried to make it less emotional. And to try to stay to the facts and all the things we're trying to wrestle with to make it make sense. Which is why I want to encourage people to come out to see the film, because it is not, in any way, sort of the standard issue film. It is a little brain teaser – in the best sense of a mystery, it is all laid out; the characters are fascinating. I will say, I don't think it is a depressing film. I think you come out of it as engaged in the end as you are in the beginning. You don't come out of it like after watching Oprah, like, oh where do I slit my wrist! It it an interesting thing.

JB: I like how it takes a mystery – and everybody loves a mystery, right? – and political theater – and everybody likes political theater now and again, and people fighting about things – and then it kind of tricks you into wrapping your mind around these dense concepts that you never take the time to understand, or allow yourself to take the time to understand. And to watch the film, people will understand the science behind fire investigation in a way that they haven't before. I've said this before…the most inspiring thing I've heard so far is when I took the first 20 minutes of the film to Gerald Hurst; he was floored. He said he'd never seen these principles of science illustrated like that before.

AC: What a great compliment!

SM: Yeah, yeah, yeah!

JB: I mean the guy's a genius.

AC: Yeah, [he's the inventor of] Mylar balloons – need I say more?

SM: [Laughs]

JB: Just a world-class inventor and for him to say that…. He said, 'you know you're going to save lives with this film.' He said, 'new fire investigators need to watch this; if they watch this they won't make the same mistakes [made in the past].' And I think that the film will be a success if that's what happens, no matter what else happens.