09/14/2011 04:48 pm ET | Updated Nov 14, 2011

Rick Perry Errs on the Side of Death

At the GOP presidential candidates' debate in Tampa Monday night, Texas Gov. Rick Perry said, "I am always going to err on the side of life."
Perry was speaking about his executive order, later withdrawn, which would have required 12-year-old girls to be injected with Gardasil, a vaccine manufactured by Merck that offers some protection against the human papilloma virus.
Yet, when it came to life or death for Cameron Todd Willingham in February 2004, Perry erred irrevocably on the side of death.
Willingham had been accused and convicted of setting a fire in December 1991, which killed his three young daughters. He was sentenced to death largely on the testimony of state fire investigators who argued that burn patterns and chemical residue found at the fire scene were evidence of arson. After the U.S. Supreme Court declined to hear Willingham's appeal in December 2003, a Texas court ordered the state's Department of Criminal Justice to put him to death by lethal injection on February 17, 2004.
As that date approached, a friend of Willingham's asked Dr. Gerald Hurst, a Ph.D. chemist and fire science expert, to review the evidence presented by the state to support its argument that the fire resulted from arson. The "junk science" of the fire investigators whose testimony led to Willingham's conviction astounded Hurst.
Hurst responded by filing an affidavit with the district court on Friday, February 13, 2004, which showed that the state's investigators disregarded National Fire Prevention Association standard 921, Fire and Explosion Investigations. In his six-page affidavit, which is incorporated as Exhibit 22 in the Report of the Texas Forensic Science Commission: Willingham/Willis Investigation, Hurst began:

The fire investigation report of the Texas State Fire Marshal's Office in this case is a remarkable document. On first reading, a contemporary fire origin and cause analyst might well wonder how anyone could make so many critical errors in interpreting the evidence. However, when the report is looked at in the context of its time and in light of a few key advances that have been made in the fire investigation field in the last dozen years, it becomes obvious that the report more or less simply reflects the shortcomings in the state of the art prior to the beginning of serious efforts to introduce standards and to test old theories that had previously been accepted on faith.

Then, point by point, he showed that the artifacts of the fire that the state's investigators claimed were evidence of arson were the result of a phenomenon that scientists call flashover. In short, there was no scientific basis for the testimony that led to Willingham's conviction and death sentence.
Also on death row in Texas in 2004 was Ernest Willis, who had been convicted of setting a fire in 1986 that killed two women. Willis was fortunate in that his case attracted the sort of attention that drew contributions to pay for attorneys and investigators. With the help of Dr. Hurst and another fire science expert, John J. Lentini, state officials eventually became convinced that the fire did not result from arson. In July 2004, U.S. District Judge Royal Furgeson of San Antonio ruled that there was "strong reason to be concerned that Willis may be actually innocent." Willis, who had come within two days of being executed, was released from prison in December 2004.
In a document presented to the Texas Forensic Commission (on page 64 of its report), Lentini contrasted the state's treatment of Willis and Willingham:

Both Ernest Willis and Cameron Willingham were sentenced to death, based on virtually identical assumptions, findings and conclusions by state and local arson investigators in 1986 and 1992 respectively that each man had set fire to houses and killed people. Eventually, the conviction of Ernest Willis was vacated and, on remand, after submission of a report by Dr. Gerald Hurst at the request of Pecos County District Attorney Ori White, the prosecution concluded that the assumptions, findings and conclusions of arson investigators had no scientific merit. The indictment against Mr. Willis was dismissed in 2004, and ultimately, the State of Texas agreed Mr. Willis was actually innocent and provided him maximum compensation under the state's wrongful conviction statute.
Mr. Willingham, on the other hand, despite an affidavit in support of clemency from Dr. Hurst submitted to the Texas Board of Pardons and Paroles and to the Governor's office that raised precisely the same criticisms as the Willis case was executed in February 2004.
These two outcomes are mutually exclusive. Willis cannot be found "actually innocent" and Willingham executed based on the same scientific evidence.

Yet, he was.
In February 2004, Dr. Hurst and others in support of Willingham were not seeking his release from prison. They were asking the court and Gov. Perry for a 30-day reprieve so they could present their scientific findings to the court and prosecutor.
In a column last year in the Austin Statesman, W. Gardner Selby wrote about Perry's decision to execute Willingham:

As far as I can tell, no one has divined precisely what Perry reviewed before denying Willingham's requested 30-day stay of execution.
Perry spokeswoman Katherine Cesinger said Perry weighed the "totality of the issues that led to (Willingham's) conviction." She said he was aware of a "claim of a reinterpretation of (the) arson testimony."
Much like Gov. White, Cesinger said: "Signing off on an execution is probably one of the most serious considerations a governor could make. (Perry) carefully reviews these matters."
I'm guessing Perry, who wasn't available for an interview, could elaborate -- if moved to do so.

When Perry subsequently gave an interview in October 2010 to Evan Smith, Editor-in-Chief of the Texas Tribune, the governor was asked: "Do you believe that the Willingham investigation is proving that we have a good process in place?"

PERRY: Yessir. It's been in front of nine courts. It's been in front of the Supreme Court four times. You had the wife come down within the last week and stand up and say, "This man told me that he murdered our children. You have the defendant [unnamed] who wrote me a letter and said, "This man killed his children."
This is a monster who killed his children. Now, I think it's pretty clear to most observers about what's going on, that this is a political issue.
SMITH: It seems to me an issue, Governor, to be a question about science and a question of whether an appropriate care was taken with the science used. He may very well have been guilty. But the question is: was the science behind the conviction sufficient at the time? That seems to me to be the question.
PERRY: I'm very comfortable that the science was good and that the justice dispensed was good and that we have not executed an innocent person.

But the science was not "good"; it was non-existent. Had the governor taken five minutes to read and understand Dr. Hurst's affidavit in the days before the execution, he would have realized there was no science whatever behind the testimony that led to Willingham's conviction. He could have erred on the side of life and provided another 30 days to allow state prosecutors and courts to consider the science underlying Hurst's findings. As governor, Perry has many demands on his time, and that was certainly the case in the third week of February 2004. According to the Office of the Governor, Perry was exceptionally busy on February 17, the day Willingham was put to death:

  • Perry went to Weslaco East High School in Weslaco as part of his Educational Excellence Road Tour and spoke about his plan to focus on "maximum achievement" and "increase the number of graduates of the distinguished achievement program."
  • He announced that Texas would participate in "a series of simulated natural disasters and simulated terrorist attacks" to test the state's preparedness.
  • He gave a speech about the importance of those exercises in which he said, "Nothing is a greater priority than the security of our free society, and the safety of those who inhabit this great country."
That evening, having decided that Willingham did not deserve another 30 days, Perry went about his business. So did the State of Texas.