Framed

The Fire Does Not Lie#3

Todd was taken to prison and began the long wait for his appeals to move through the system.

He pleaded with his lawyers to rescue him, writing, “You can’t imagine what it’s like to be here, with people I have no business being around.”

He was not a criminal and didn’t belong with a bunch of murderers.

He fought with his cellmates and spent time in “The Dungeon,”

a black hole where troublemakers were banished.

Child abusers are scorned in prison, and Todd fought back when he was called a “baby killer.”

Todd liked some of his fellow inmates.

Others he loathed.

In the mid-1990s, Texas was killing prisoners so fast that he knew better than to develop friendships.

Even so, it was difficult watching so many men he knew count down their final hours and disappear.

Every execution reminded those left behind that their day would come.

One inmate Todd particularly liked was Ernest Ray Willis, one of the few others who insisted he was innocent.

Contrary to popular belief, most men condemned to die do not claim innocence.

Many are proud of their crimes and enjoy bragging about them, especially in prison.

Willis’s case was unbelievably similar to Todd’s.

He was convicted of setting fire to a house in which he was sleeping.

Two women died in another room.

He barely escaped as the house exploded in flames.

His bare feet were unharmed.

Neighbors thought he acted suspicious.

Fire inspectors found pour patterns and other clear signs of arson.

There was no motive.

Willis had no record of violent crime.

Prosecutors decided he was a sociopath and charged him with two counts of capital murder.

The jury quickly found him guilty and sentenced him to death.

Todd was stunned by the similarities.

Willis, by the luck of the draw, had attracted the attention of a powerful New York law firm that entered his case as pro bono counsel.

The lawyers were convinced he was innocent and were spending a fortune on experts and investigators.

Todd was stuck with his old team.

He often complained to his parents of the burden of being represented by lawyers who thought he was guilty.

—

The Texas Court of Criminal Appeals rarely reversed a conviction, regardless of a paucity of real evidence or whatever happened at trial.

In March 1995, it unanimously affirmed Todd’s conviction.

In doing so it found no problems with the trial, and said the trial court had properly denied Todd’s motion for a change of venue.

The ruling shoved him another step closer to execution.

He managed to get another lawyer, Walter Reaves from Waco, and was thrilled when he realized Mr.

Reaves had serious doubts about his conviction.

He filed habeas corpus petitions in state court and they were denied.

He filed them in federal court in 2001 and 2002, but they were denied.

He appealed to the U.S.

Supreme Court, but in December 2003, twelve years after the fire, the court refused to hear the case.

An execution date was set for February 17, 2004.

On February 3, 2004, Walter Reaves filed for a temporary reprieve with the parole board and the governor’s office.

Ten days later, he filed again, in both places, an affidavit that included a report challenging the science behind the fire investigation.

The report was prepared by Dr.

Gerald Hurst, a well-known fire expert who lived in Austin, Texas.

The request for a stay was denied by both the parole board and the governor’s office.

—

Dr.

Gerald Hurst was a brilliant chemist who grew up poor in Oklahoma during the Depression.

As a child he busied himself building radios from scrap iron, wires, and metals he found in junkyards.

A teacher recognized his talent and steered him to college.

He eventually received a PhD in chemistry from Cambridge University and worked for defense contractors building secret weapons.

He designed bombs and other explosives and received some lucrative patents.

With time he got tired of creating weapons that killed people and went to work investigating fires for insurance companies.

His knowledge of fires and explosives was vast, and he became a leading expert in the field.

Criminal law got his attention, and as he began studying arson he was shocked at the methods used by state and local investigators.

Most had only high school educations and had absorbed their knowledge by on-the-job training.

They learned from the old guys, who had learned from the old guys.

There were no enforceable national standards for arson investigation.

In 1992, the National Fire Protection Association published its first guidelines, but they were routinely ignored.

State and local arson investigators, for the most part, believed that their experience and intuition were more effective than the new scientific standards.

In the late 1990s, Dr.

Hurst began investigating arson cases in which people had been convicted and sent to prison.

His substantial income from patent royalties allowed him to devote time to his work without the need for getting paid, and he was generous with it.

By the time he heard of Todd’s case, his work had been crucial in ten exonerations of innocent people.

Two weeks before the execution, with the clock ticking loudly, Walter Reaves sent him Todd’s file.

He spread it out in the cluttered basement of his home in Austin and went to work.

As he plowed through the voluminous materials, a few items caught his attention.

The first was a statement by Manuel Vasquez that he had investigated between 1,200 and 1,500 fires and found arson in 80 percent of them.

That was an incredibly high number, and Dr.

Hurst simply didn’t believe it.

Nationwide, fire officials had for decades reported a 50 percent rate of arson.

Next was another statement by Vasquez, claiming that the fire burned “fast and hot”

because of a liquid accelerant.

It was an established belief among arson investigators that fires started by combustible liquids were hotter than those started by wiring, or space heaters, or wood, cloth, or other materials.

This was a damning assumption, because it usually led to the suspicion that someone—the arsonist—poured or splashed gasoline or lighter fluid on the floor before lighting a match.

But the theory was completely erroneous.

Numerous experiments had proven that wood and gasoline fires burn at essentially the same temperature.

Hurst quickly became skeptical of everything Fogg and Vasquez said in their report.

For example, they claimed that the brown stains on the front porch were evidence of a liquid accelerant that had not had time to soak into the concrete.

The theory was that Todd sprayed fluid on the threshold of the front door to prevent his little girls from escaping.

Dr.

Hurst knew better.

Brown floor stains were common in fires and seldom had anything to do with accelerants.

Another example was the “crazed glass”

theory that the fire was so hot and fast that it cracked glass.

Hurst knew better because he had tested various types of glass by heating them with a blowtorch, then cooling them suddenly with water.

The weblike patterns in the glass were the same regardless of what caused the fire.

“Flashover”

is a phenomenon that occurs when a room gets so hot it literally explodes with fire.

Fogg and Vasquez assumed, as did most old-time arson sleuths, that flashover happened much faster when an accelerant was used.

This, too, was erroneous.

Once flashover occurs, the path of the fire depends on new sources of oxygen.

When Todd escaped through the front door, the fire rushed toward it.

When he knocked out the windows, flames shot out through them.

Fogg and Vasquez concluded that it was impossible for Todd to run down the hall and through the front door without burning his bare feet.

But with a flashover effect, the hallway was not yet on fire.

The smoke was impenetrable, but the fire was contained, momentarily, in the children’s room.

After flashover, it becomes impossible to determine accelerant patterns.

Dr.

Hurst conducted an experiment for each piece of evidence analyzed in the Fogg and Vasquez report.

Vasquez had made a video of the house, and Hurst studied it.

His experiments proved that each original conclusion was wrong.

He methodically went through the Fogg and Vasquez list of the twenty indicators of arson and debunked each one.

There was no evidence that the fire started in multiple locations.

Because he had not visited the scene, he could not determine the cause.

But he had no doubt that it was not arson—it was an accidental fire, probably caused by a space heater or bad electrical wiring.

That explained why no motive for the fire had ever been established.

He hurriedly typed his report.

It began with: “A contemporary fire origin-and-cause analyst might well wonder how anyone could make so many critical errors in interpreting the evidence.”

He sent it to Walter Reaves, who immediately filed it with the parole board in hopes of a last-minute reprieve.

The board refused.

Walter Reaves worked frantically to get the Hurst report in front of state and federal judges.

He also sent it to the office of Governor Rick Perry, where it was received four days before the execution.

The lawyer was hopeful that Governor Perry would grant reprieve in order to review the Hurst report.

Perry was a staunch, even noisy supporter of the death penalty and intervened in only one of the 234 executions carried out during his fourteen years as governor.

In 2001, he vetoed a bill that would have banned the execution of inmates with very low IQs.

His aides verified that Perry had the Hurst report on February 17, the day of the execution.

Reaves called Todd and told him the parole board had voted unanimously against him.