Framed

The Fire Does Not Lie#4

During his final days, Todd asked Stacy if he could be buried next to his children.

She refused.

She had divorced Todd when he was on death row and remarried.

Her story, and it changed often, was that she had believed him for a long time after the fire, but doubts had arisen.

She said she had looked at the original court records and arson reports (but not the one from Dr.

Hurst) and had determined that he was in fact guilty.

She told a reporter, “He took my kids away from me.”

Weeks earlier, she had gathered her family and informed them that Todd had confessed to her that he had deliberately set the fire with the intention of killing their children.

After the execution, she denied he had confessed.

On February 17, Todd met with his parents and some relatives in the visitation room.

Even at that last hour he was forbidden from touching them.

He could not hug his parents because they were separated by a sheet of Plexiglas.

Such was the procedure in all Texas executions.

At 4:00 p.m.

he ate his last meal—barbequed pork ribs, fried okra, bean enchiladas with cheese, onion rings, and two slices of lemon cream pie.

He received word that Governor Perry had refused to grant a reprieve.

He told his parents, “In fifty-five minutes, I’m a free man.

I’m going home to see my kids.”

When it was time, he was carried into the death chamber by guards and strapped down with leather belts.

A medical team inserted tubes in both arms.

Though there were plenty of volunteers for the job, the team members wanted to deflect some of the responsibility.

Each had a different role so no one member could be held solely responsible.

The warden asked Todd if he had any last words.

He said, “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 will become my throne.”

He looked at the witness room and saw Stacy, who was not expected to be there, and began cursing her.

The warden pulled the microphone away, then pushed a remote control.

Sodium thiopental, a barbiturate, was pumped into Todd’s arm.

Then pancuronium bromide, which paralyzes the diaphragm and stops the breathing.

A third drug, potassium chloride, was sent in to stop his heart.

He died at 6:20.

At his request, he was cremated and his parents secretly spread his ashes over his children’s graves.

—

The execution was immediately controversial.

Death penalty lawyers and innocence advocates complained loudly that Texas, and especially Governor Perry, chose to ignore the latest scientific findings from Dr.

Hurst and rushed the execution.

What was the hurry? Todd had been on death row for only ten years, not a long time in the byzantine world of post-conviction litigation.

Death penalty advocates, especially politicians, constantly complain of the endless appeals and promise efforts to kill people faster.

The truth is that it often takes years, even decades, to find the evidence hidden by the police and prosecutors.

Tragically, that evidence is often not found in time.

What happened to the Hurst report in Governor Perry’s office? The official version is that the report was read and considered.

A deputy press secretary said, “As with any execution, the governor was previously briefed on all the facts of the case.

He was briefed on this [Hurst’s] report once our office obtained it late that afternoon.

After the document, which was four pages, was requested, obtained, and reviewed, the governor shared the opinion of the state and federal judiciary that the report was not enough to merit a stay of execution.”

—

Questions about the investigation and the science behind it soon made the front page.

Two reporters for the Chicago Tribune, Steve Mills and Maurice Possley, went to Corsicana to investigate.

They also consulted with prominent fire experts and arson investigators, all of whom agreed that the work of Fogg and Vasquez was deeply flawed.

Dr.

Hurst, one of the experts, said, “There’s nothing to suggest to any reasonable arson investigator that this was an arson fire.

It was just a fire.”

Even Texas agreed with him.

Edward Cheever, a Texas state deputy fire marshal who had assisted Vasquez in the original 1992 investigation, admitted, “At the time of the Corsicana fire we were still testifying to things that aren’t accurate today.

They were true then, but they aren’t now.

Hurst was pretty much right on.

We know now not to make those same assumptions.”

Kendall Ryland was a fire chief and former fire and arson instructor at Louisiana State University.

In his workshop he tried to simulate the conditions described by Fogg and Vasquez.

When his experiments went nowhere, he told a reporter, “It made me sick to think this guy was executed based on this investigation.

They executed this guy and they’ve just got no idea—at least not scientifically—if he set the fire, or if it was even intentionally set.”

A year after Todd’s execution, and in response to growing complaints about the shoddy forensics being used in Texas courtrooms, the state established the Texas Forensic Science Commission.

The first cases to be reviewed were Todd’s and Ernest Ray Willis’s, the other arson case that was virtually identical to Todd’s.

After seventeen years on death row, Willis was a free man, thanks to a talented legal team, and thanks also to Dr.

Hurst, who had reviewed his case and concluded that the fire was not due to arson.

The prosecutor believed the report and dropped the charges.

In both cases, Dr.

Hurst concluded there was no arson.

Todd was dead.

Willis was free.

Different prosecutors, different court districts, same state.

The commission hired Craig Beyler, a noted fire expert and scientist, to conduct the review.

His analysis followed that of Dr.

Hurst, though his language was somewhat stronger.

He concluded that Fogg and Vasquez had no scientific basis for finding arson.

They ignored evidence, relied on discredited folklore, failed to eliminate potential alternative causes, did not understand basic fire dynamics, and violated “not only the standards of today but even of the time period.”

He criticized the findings of Fogg and Vasquez as “nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”

When the commission was set to review Beyler’s report, Governor Perry suddenly dismissed three members, including the chairperson.

Perry, who was still confident that Todd was guilty and even disparaged the experts who said otherwise, replaced the chairperson with a Texas prosecutor.

The shakeup of the commission delayed Beyler’s testimony and other expert findings from his investigation until after the upcoming gubernatorial election.

Governor Perry was running for reelection in 2010 and planning a bid for the White House in 2012.

—

In 2006, the Innocence Project assembled five of the nation’s leading independent arson experts to review the evidence in the case.

The “Arson Review Committee”

researched every aspect of the fire and picked apart the work of Fogg and Vasquez.

Its forty-eight-page report concluded that the fire that killed the three Willingham children was accidental.

It read, in part, “The artifacts examined and relied upon by the fire investigators in the case are the kind of artifacts routinely created by accidental fires that progress beyond flashover.”

And: “The State’s expert witnesses…relied on interpretation of ‘indicators’ that they were taught constituted evidence of arson.

While we have no doubt that these witnesses believed what they were saying, each and every one of the indicators relied upon have since been scientifically proven to be invalid.”

And: “Unfortunately for Mr.

Willingham, while the fire may not have ‘lied,’ Mr.

Vasquez misinterpreted what it was telling him.

Such willingness to offer ‘expert’ testimony, while lacking the knowledge to present accurate information to the jury, may excuse Mr.

Vasquez’s many serious errors.

The judicial system that allows such testimony to be presented, however, is in serious need of reform.”

—

The conviction rested on two sources of evidence: the arson investigation and the testimony of Johnny Webb.

Motive is not a requirement for capital murder.

The State knew it couldn’t prove motive, because there was none.

With the Fogg and Vasquez report and testimony taking heat from all directions, the prosecution worked overtime to keep its snitch, Johnny Webb, in line.

He proved to be unstable and manipulative.

His threats to recant and tell the truth routinely sent the prosecution into fits.

Every snitch wants a deal.

They are in jail looking at more time in prison and they know how to play the police and prosecutors.

At trial, every snitch lies when he or she tells the jury that there was no deal with the prosecution.

There is always a deal.

The prosecutor made it, and the prosecutor knows the snitch is lying.

Suborning perjury is the act of inducing a witness to lie, but prosecutors are never punished when their snitches lie in court.

While reporters, lawyers, and innocence advocates assailed the bad forensics, they also hounded John Jackson.

If there had been a deal with Johnny Webb, they were determined to find it.

Oddly enough, they were aided by Jackson himself.

Many of his efforts to protect Webb were documented by their own letters.

For example, two months after the Willingham trial, Jackson wrote to a prison official asking that Webb be transferred to a medical unit, a much better place than the protective unit he was in.

He explained that Webb was a crucial witness in a capital murder prosecution, and, as a snitch, was at risk in the prison’s general population.

He wrote that he might need Webb again in court and wanted him in “an environment that guarantees the smallest risk.”

A month later he wrote again, requesting that Webb be returned to the Navarro County jail in Corsicana for an even safer environment.

He claimed that Webb had received death threats and needed to be protected.

Having Webb closer to home, actually right down the street, would make things easier for Jackson.

He wrote, “In the event of a reversal, I would also like to be able to count on Webb’s continued cooperation.”

His request was denied.

The letters continued over the next three years as Jackson worked diligently to keep his snitch happy.

Jackson leaned on a friend, a wealthy rancher named Charles Pearce, to funnel money to Webb’s prison commissary account.

In 1995, Webb wrote to Pearce with the story of a prison guard who was urging him, Webb, to recant his testimony to appease other prisoners who hated snitches.

Pearce relayed this troubling news to Jackson, who wrote the warden and said, “I hate to keep bothering you with Johnny Webb problems.

Webb is not exactly a model citizen, but I would be very concerned if prison personnel is leaning on him in an attempt to change his story.”

In 1996, Webb wrote to Jackson and demanded a transfer to either a federal prison or the Navarro County jail.

In the letter, Webb, inadvertently or otherwise, finally admitted the truth.

He wrote, “Here the state offered me certain benefits in exchange for my testimony which resulted in sending a man to death row.

Because I kept my end of the promise, the state is bound to uphold theirs until my release from incarceration.”

Jackson worked behind the scenes to secure an early release for Webb.

He lobbied Judge Kenneth “Buck”

Douglas, the same judge who had presided over Todd’s trial and also sentenced Webb to fifteen years, to reduce Webb’s conviction to a lesser charge.

He wrote to the parole board on Webb’s behalf and covered his trail nicely by assuring the board that Webb had not been promised leniency for his testimony and that there had been no “expectation of leniency.”

Jackson wrote to Webb to reassure him.

Pearce wrote to Webb to reassure him.

They promised they were doing everything possible to get him released.

In spite of this highly unusual fawning over a career criminal, Webb kept threatening to go public with the truth.

When his request for an early release was denied, Jackson himself asked the governor for clemency.

He was denied.

Jackson was determined to keep Webb happy as long as the lawyers for Todd Willingham were filing appeals.

In 1996, Jackson was elected to the bench, succeeding Judge Douglas.

As the circuit court judge, he had far more power than as an assistant district attorney.

One of his first moves was to issue a warrant to prison officials to haul Webb back to Navarro County for a hearing.

There is no record of one taking place.

Two years later, Webb was finally paroled.

He went straight to Pearce, who gave him money to buy a pickup truck.

Pearce also agreed to cover the cost of a commercial driving course for Webb.

He enrolled, then got busted on another drug charge and thrown in jail.

He listed a $1,000-a-month stipend from Pearce as his only income.

He pled guilty, got two years, but his parole violation locked him up until 2007.

When he returned to prison, Pearce began sending him money again.

In March 2000, from prison, Webb prepared a nice piece of jailhouse lawyering, a handwritten document he called a “Motion To Recant Testimony.”

In it, he admitted lying about Todd Willingham, who “is innocent of all charges.”

He sent it to the district attorney, who sent it to Judge John Jackson.

It was never sent to Todd’s lawyers, nor was it included in Webb’s court file.

Webb eventually dropped the matter.

In August 2000, Judge Jackson wrote to Webb and assured him that he and Pearce were working hard to get him released again.

In 2004, as Todd’s execution was getting closer, his lawyer, Walter Reaves, requested a ninety-day reprieve.

Reaves had heard rumors of Webb getting a pickup truck in return for his testimony and wanted to investigate.

Judge Jackson opposed the request.

It was denied.

—

Webb was paroled in 2007 and recanted again.

In a series of taped interviews with the Marshall Project, a nonprofit news organization that covers the criminal justice system, Webb said John Jackson threatened him with a long prison sentence on the robbery charge if he didn’t lie in his testimony against Todd Willingham.

Jackson also promised to reduce his prison sentence if he testified.

—

David Grann is an award-winning journalist who has written for The New Republic and The New Yorker, among other publications.

His books have been huge bestsellers.

In August 2009, The New Yorker published a lengthy investigative piece by him titled “Trial by Fire: Did Texas Execute an Innocent Man?”

The story was a shocking exposé of the Willingham case and sent it to the forefront of the debate about capital punishment.

Impeccably researched, beautifully written, and remarkably balanced, it dug deep into the science of fires and arson investigations and concluded that the Fogg and Vasquez report was deeply flawed.

Grann interviewed everyone who would talk to him: the families, neighbors, firemen, lawyers, police, prosecutors, witnesses, Johnny Webb, scientists, and even some of the jurors.

The most important passages deal with the history of arson investigation and the need for more knowledge and better training.

—

In 2014, the Innocence Project, which had been investigating the Willingham case for a decade, filed a grievance against Judge Jackson with the State Bar of Texas, arguing that he should be investigated, sanctioned, or even criminally prosecuted for falsifying official records, withholding evidence from the defense, suborning perjury, and obstructing justice.

The grievance claimed Jackson’s conduct “violated his professional, ethical, and constitutional obligations.”

The state bar took such complaints seriously.

In 2013, it forced a judge to resign his position, surrender his license to practice, and serve ten days in jail in the well-known wrongful conviction of Michael Morton.

The judge had been the prosecutor and had hidden evidence.

Morton was accused of killing his wife and spent twenty-five years in prison before he was proven innocent by DNA testing.

The judge served five days in jail and was released on good behavior.

It is the only case on record in the United States where the prosecutor responsible for wrongfully sending someone to prison has been forced to serve time himself.

In 2014, the Texas State Bar successfully sought the disbarment of the district attorney Charles Sebesta for misconduct in the prosecution of Anthony Graves.

After an investigation, the state bar accused John Jackson of failing to inform Todd’s lawyers that Webb had been promised favorable treatment in return for his testimony.

Jackson denied everything and demanded a jury trial.

In Navarro County! A special judge was sent in and twelve jurors were chosen.

Attorneys for the state bar showed them a video deposition of Webb admitting he lied at Todd’s trial after Jackson promised him favorable treatment.

However, when Webb was put on the stand, he clammed up and refused to answer questions.

He took the Fifth over fifty times and refused to incriminate himself.

His memory wasn’t working and he couldn’t remember much.

Almost a hundred times he said he simply couldn’t recall anything.

The jury voted 11–1 in favor of John Jackson.

It was a bruising defeat for the Texas State Bar and the Innocence Project, and a satisfying win for Jackson.

On April 3, 2014, the Texas Board of Pardons and Paroles voted not to recommend a posthumous full pardon for Todd Willingham.

The Innocence Project, along with Todd’s relatives and Michael Morton, had asked Governor Perry to order the parole board to investigate whether the state should pardon Todd.

The parole board did investigate but refused the pardon.

—

A final word from Johnny Webb.

In a 2015 interview with Maurice Possley on behalf of the Marshall Project, Webb regretted getting involved in the trial.

He said, “Now I’m stuck in this Willingham thing for the rest of my life.”