Incendiary: The Willingham Case

I recently blogged about a roadblock in the Cameron Todd Willingham investigation; specifically, the Texas Attorney General’s Office issued an opinion that the examination was outside the scope of the Texas Forensic Science Commission’s investigative authority. Incendiary, a new documentary about the case, is opening across the United States. Incendiary chronicles the original investigation, trial and subsequent investigation by the Commission. It provides an extraordinary look into the Commission proceedings, the science and the defense attorney’s perspective.  It picks up where Frontline left off, going even deeper into this long and complicated investigation.



The documentary weaves together a narrative from interviews with people involved with the case and subsequent investigation: Sam Bassett, Former Chairman of Texas Forensic Science Commission; Eugenia Willingham, Todd’s step-mother; Elizabeth Gilbert, a writer who connected with Todd on death row; and Gerald Hurst, scientist. Through them, we are introduced to Todd’s life, his past, the science of arson investigation, the foibles of the criminal justice system and the political implications for this in Texas.

Texas Governor (and Presidential hopeful) Rick Perry’s decision to fire three members of the Commission and replace them with his allies has attracted a lot of media attention and spurred speculation that Perry is trying to suppress evidence that an innocent man was executed on his watch.  Incendiary takes us into the Commission meetings to show us firsthand the effects of this change. We see John Bradley, a prosecutor and Governor Perry’s appointee Chair, trying to kick out the cameras, delegating the Willingham investigation to a committee (not subject to Texas Open Meetings Act) and being generally non-responsive to the investigation.

Incendiary also provides a compelling discussion of the forensic evidence, techniques and mis-steps in the trial. The experts interviewed are credible and plain spoken. They take the time to explain the basic science, and painstakingly explain where the original investigation went wrong. It’s clear from their interviews that the experts are outraged by the triumph of “lore”-based arson investigation over hard science:

“If Todd Willingham really did this, then I can see why people would say oh yeah he deserves the death penalty, but there’s just no evidence he really did it. It’s all fabricated, it’s all folklore, it’s what I call witchcraft.” John Lentini, Arson Expert, Scientific Fire Analysis, LLC.

The film is able to connect this original failure to the troubles the Forensic Science Commission is currently experiencing: politics is suppressing the science. Texas continues to steamroll over the science in favor of self-preservation and political motives.

One of the most disturbing presentations in this film is the interview with Willingham’s original defense attorney, David Martin. It was interesting to hear his perspective on the trial, and the challenges that it presented–I can’t imagine this was an easy case. His perspective on his own client, however, is incredible.

David’s theory is that Willingham was guilty–plain and simple. He goes on at length about what a bad person his client was. He calls him a psychopath and a sociopath. He talks about what a bad parent and person he was. Basically, he tells us that it doesn’t matter that he lost because his client was guilty anyway.  Apparently, he has been telling this to anyone who will listen, including Rick Perry. Governor Perry often quotes Martin when called upon to defend the Willingham execution. In one interview shown in the documentary, Rick Perry tells us: “You have the defender, who wrote me a letter and said, this man killed his children. This is a monster who killed his children.”

Perhaps it’s his ego talking–who wants to admit they lost an innocent client to death row? Where he oversteps, in my opinion, is when he implies that he has confidential, privileged information that he can’t share that proves his client was guilty.  He is throwing his (dead) client under the bus, and then hiding behind the attorney client privilege when asked for the facts. This is despicable and it should anger every attorney who reads this post.

Interviewer: “Aside from the public record and all the evidence you put on during trial…is there any other reason why you’re so confident that the right decision was made?”
Martin: “Well, there might be. Maybe the attorney client privilege prevents me from tellin’ ya.”

While Martin doesn’t come out and say “I know something that you don’t,” the implication from this statement seems pretty clear. He is smirking and looking all around as he says it.

I don’t know enough about Texas law to hazard a guess as to whether this behavior is ethical, but others more knowledgeable have criticized Mr. Martin before. In 2009, he appeared on Anderson Cooper to discuss the Willingham case. Mark Bennett, of the blog Defending People, discusses the ethics of this, and the Texas client confidentiality rules generally. Other attorneys discuss Martin’s “disgraceful” behavior here, and Scott Greenfield at Simple Justice weighs in here.

I can say it doesn’t take a lawyer to tell you it’s sleazy — that’s just “common sense,” to use one of Martin’s favorite phrases.

Incendiary is a well-crafted, interesting documentary. I think that the timing for the release could not be better–the Commission recently announced that the Willingham investigation is officially closed, following the AG’s direction. Hopefully this movie will keep the discussion up about the case, and the problems with improper science and wrongful convictions.