Review: Death by Fire

FRONTLINE recently examined the controversial execution of Cameron Todd Willingham. The State of Texas had executed Mr. Willingham in 2004 for the death of his children in a fire, which the State Fire Marshal had concluded was intentionally set by the defendant.

Days before the scheduled execution, Gerald Hurst, a fire science expert, reviewed the original investigation report and issued his own analysis that “most of the conclusions reached by the Fire Marshall would be considered invalid in light of current knowledge.” Regarding the damning burn trailers, pour patterns and puddle configurations, Mr. Hurst explained:

With the advent of NFPA 921, it became more and more widely realized that post-flashover burning in a room produces floor burn patterns which cannot be differentiated from burns imagined to be caused by liquid accelerants. Full scale testing…showed that post-flashover burning, even of relatively short duration, makes it impossible to identify accelerant burns visually. Thus it becomes impossible to visually identify patterns under these conditions.”

Unfortunately, Mr. Hurst’s report and subsequent legal appeals failed to delay the execution. However, the State of Texas is performing a post-mortem investigation of the case. The Texas Forensic Science Commission hired Dr. Craig Beyler to review the arson conclusion in the Willigham case. In his report, Analysis of the Fire Investigation Methods and Procedures Used in the Criminal Arson Cases Against Ernest Ray Willis and Cameron Todd Willingham, Dr. Beyler confirmed the conclusion reached earlier by Gerald Hurst:

The investigations of the Willis and Willingham fires did not comport with either the modern standard of care expressed by NFPA 921, or the standard of care expressed by fire investigation texts and papers in the period 1980–1992. The investigators had poor understandings of fire science and failed to acknowledge or apply the contemporaneous understanding of the limitations of fire indicators. Their methodologies did not comport with the scientific method or the process of elimination. A finding of arson could not be sustained based upon the standard of care expressed by NFPA 921, or the standard of care expressed by fire investigation texts and papers in the period 1980–1992.

The Beyler report is quite comprehensive and informative. However, before Dr. Beyler could present his report to the commission, Texas governor Rick Perry replaced three members of the commission. As of now, the investigation is still ongoing.

Regardless of where you stand on the death penalty, this provocative documentary raises many concerns. The issue is not whether an innocent person can be wrongfully convicted. That question has been answered long ago by successive exonerations of persons formerly condemned to death row. The truth is, despite all the constitutional protections afforded to defendants in our system of justice, mistakes will occur. So, knowing that our current system has flaws, do we accept the possibility that an innocent person may be executed as a permissible trade-off or do we take the only punishment that is irreversible off the table?

In closing, I leave you with Justice Blackmun’s dissent in Callins v. Collins, 510 U.S. 1141 (1994):

The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel–someone who is inspired by the awareness that a less than vigorous defense truly could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants’ rights–even now, as the prospect of meaningful judicial oversight has diminished. In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.

But even if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy. Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, see Furman v. Georgia, 408 U.S. 238 (1972), and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.